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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Threatened Species Conservation
Amendment Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Threatened Species Conservation Act 1995
No 101 2
4 Amendment of other Acts 2
Schedules
1 Amendment of Threatened Species Conservation Act 1995 3
2 Amendment of other Acts 36
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Threatened Species Conservation
Amendment Bill 2002
Act No , 2002
An Act to amend the Threatened Species Conservation Act 1995 to make further
provision with respect to the conservation of threatened species, populations and
ecological communities of animals and plants; to make related amendments to
other Acts; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Threatened Species Conservation Amendment Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Threatened Species Conservation Amendment
Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Threatened Species Conservation Act 1995 No 101
The Threatened Species Conservation Act 1995 is amended as set out
in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
Page 2
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
Schedule 1 Amendment of Threatened Species
Conservation Act 1995
(Section 3)
[1] Section 4 Definitions
Omit the definitions of animal and plant from section 4 (1). Insert instead:
animal means any animal-life that is indigenous to New South
Wales or is known to periodically or occasionally migrate to
New South Wales, whether vertebrate or invertebrate and in
any stage of biological development, but does not include:
(a) humans, or
(b) fish within the meaning of Part 7A of the Fisheries
Management Act 1994.
Note. Some types of fish may be included in the definition of animal. See
section 5A.
plant means any plant-life that is indigenous to New South
Wales, whether vascular or non-vascular and in any stage of
biological development, and includes fungi and lichens, but
does not include marine vegetation within the meaning of
Part 7A of the Fisheries Management Act 1994.
Note. Some types of marine vegetation may be included in the definition
of plant. See Section 5A.
[2] Section 4 (1)
Insert in alphabetical order:
Fisheries Scientific Committee means the Fisheries Scientific
Committee constituted under Part 7A of the Fisheries
Management Act 1994.
threatened ecological community means an ecological
community specified in Part 3 of Schedule 1 or Part 2 of
Schedule 2.
vulnerable ecological community means an ecological
community specified in Part 2 of Schedule 2.
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[3] Section 4 (1), definition of "threatened species, populations and
ecological communities", note
Insert at the end of the definition:
Note. In some cases vulnerable ecological communities are excluded
from this expression. See subsection (5).
[4] Section 4 (1), definition of "vulnerable species"
Insert "Part 1 of" before "Schedule 2".
[5] Section 4 (5)
Insert after section 4 (4):
(5) In Parts 6 and 7, a reference to threatened species, populations
and ecological communities or threatened species, population
or ecological community (however expressed) does not
include a reference to any vulnerable ecological community.
However, this subsection does not affect the application of
those Parts to any threatened species or endangered populations
that may form part of a vulnerable ecological community.
Note. Vulnerable ecological communities are excluded from the licensing
provisions of this Act and from related offences under the National Parks
and Wildlife Act 1974. However, the Director-General may prepare a
recovery plan in respect of a vulnerable ecological community and that
plan and the provisions of Division 2 of Part 4 of this Act apply in respect
of the implementation of that plan.
[6] Section 5A
Insert after section 5:
5A Relationship between this Act and Part 7A of the Fisheries
Management Act 1994
(1) The Minister may, by order made with the concurrence of the
Minister administering the Fisheries Management Act 1994:
(a) declare a species of fish to be a species of animal for the
purposes of this Act if it is an invertebrate and it is a
species that may inhabit a terrestrial environment at
some stage of its biological development, or
Page 4
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(b) declare a species of marine vegetation to be a species of
plant for the purposes of this Act if it is a species that
may inhabit freshwater or a terrestrial environment at
some stage of its biological development.
(2) Any species of fish or marine vegetation that is the subject of
an order in force under this section is taken to be a species of
an animal or plant for the purposes of this Act, in accordance
with the terms of the order.
(3) The Minister and the Minister administering the Fisheries
Management Act 1994 may at any time consult with each other
for the purpose of determining whether an order under this
section should be made and the terms of the order.
(4) The Ministers may also consult with the Chairperson of the
Scientific Committee, the Chairperson of the Fisheries
Scientific Committee and any other person or body before
making an order under this section.
(5) If the Ministers are unable to resolve any dispute between them
as to the making or the terms of an order under this section, the
matter is to be referred to the Premier for resolution. The
decision of the Premier in relation to the matter is to be given
effect to by the Ministers.
(6) An order under this section is to be published in the Gazette.
(7) For avoidance of doubt, an order under this section does not
require the species concerned to be listed under Part 2 of this
Act.
(8) In this section:
fish means any fish (within the meaning of the Fisheries
Management Act 1994) that is indigenous to New South
Wales.
freshwater has the same meaning as in the Fisheries
Management Act 1994.
marine vegetation means any marine vegetation (within the
meaning of the Fisheries Management Act 1994) that is
indigenous to New South Wales.
Page 5
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[7] Part 2, Introductory note
Insert "and vulnerable ecological communities" after "Schedule 2, of
vulnerable species".
[8] Part 2, Introductory note
Insert after the paragraph relating to Division 4:
Division 5 describes the process by which certain minor amendments may
be made to Schedules 13.
[9] Section 6 Schedule 1 list of endangered species, populations and
ecological communities
Omit section 6 (5) and (6). Insert instead:
(5) Any endangered species or species presumed extinct that is a
listed threatened species under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth is
marked with an asterisk to show that the species is considered
to be a threatened species nationally.
(6) Any endangered ecological community that is a listed
threatened ecological community under the Environment
Protection and Biodiversity Conservation Act 1999 of the
Commonwealth is marked with an asterisk to show that it is
considered to be a threatened ecological community nationally.
[10] Sections 7 and 7A
Omit section 7. Insert instead:
7 Schedule 2 list of vulnerable species
(1) Part 1 of Schedule 2 contains a list of vulnerable species for the
purposes of this Act.
(2) Any vulnerable species that is a listed threatened species under
the Environment Protection and Biodiversity Conservation
Act 1999 of the Commonwealth is marked with an asterisk to
show that it is considered to be a threatened species nationally.
7A Schedule 2 list of vulnerable ecological communities
(1) Part 2 of Schedule 2 contains a list of vulnerable ecological
communities for the purposes of this Act.
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(2) Any vulnerable ecological community that is a listed threatened
ecological community under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth is
marked with an asterisk to show that it is considered to be a
threatened ecological community nationally.
[11] Section 9 Listing of nationally threatened species and ecological
communities
Omit section 9 (1). Insert instead:
(1) As soon as practicable after a species or ecological community
that is or was indigenous to New South Wales becomes a listed
threatened species or a listed threatened ecological community
under the Environment Protection and Biodiversity
Conservation Act 1999 of the Commonwealth, the Scientific
Committee is to consider whether, in accordance with
Divisions 2 and 3, the species or ecological community should
be listed as a threatened species or threatened ecological
community in Schedule 1 or 2 to this Act.
[12] Section 9 (3)
Omit "If a threatened species or endangered ecological community is
omitted from Schedule 1 or 2 to the Endangered Species Protection
Act 1992".
Insert instead "If a threatened species or threatened ecological community
ceases to be a listed threatened species or a listed threatened ecological
community under the Environment Protection and Biodiversity
Conservation Act 1999".
[13] Section 9 (4)
Insert after section 9 (3):
(4) If a threatened species or threatened ecological community
becomes a listed threatened species or a listed threatened
ecological community under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth
subsequent to its being listed in Schedule 1 or 2 to this Act, the
Minister is, by order published in the Gazette, to amend
Schedule 1 or 2 to this Act to insert an asterisk showing its
national status.
Page 7
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[14] Section 11
Omit the section. Insert instead:
11 Populations eligible for listing as endangered populations
(1) A population is eligible to be listed as an endangered
population if, in the opinion of the Scientific Committee, it is
facing a high risk of becoming extinct in nature in New South
Wales and it is of conservation value at the State or regional
level for one or more of the following reasons:
(a) it is disjunct or near the limit of its geographic range,
(b) it is or is likely to be genetically, morphologically or
ecologically distinct,
(c) it is otherwise of significant conservation value.
Note. The intention of the criteria is to exclude from listing isolated
populations of limited conservation value.
(2) A population is not eligible to be listed as an endangered
population if it is a population of a species already listed in
Schedule 1.
[15] Section 12 Ecological communities eligible for listing as endangered
ecological communities
Omit "or evolutionary development" from section 12 (a).
[16] Section 13
Omit the section. Insert instead:
13 Species eligible for listing as species presumed extinct
A species is eligible to be listed as a species that is presumed
extinct at a particular time if, in the opinion of the Scientific
Committee, it has not been recorded in its known or expected
habitat in New South Wales, despite targeted surveys, over a
time frame appropriate, in the opinion of the Scientific
Committee, to its life cycle and form.
[17] Section 14 Species eligible for listing as vulnerable species
Insert "in New South Wales" after "endangered".
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[18] Section 14A
Insert after section 14:
14A Ecological communities eligible for listing as vulnerable
ecological communities
An ecological community is eligible to be listed as a vulnerable
ecological community if, in the opinion of the Scientific
Committee, the ecological community is likely to become
endangered in New South Wales unless the circumstances and
factors threatening its survival cease to operate.
[19] Section 17 Scientific Committee responsible for lists
Omit "at least bi-annually" from section 17 (2).
Insert instead "at least every 2 years".
[20] Section 19 Making nomination for inclusion on, omission from or
amendment of list
Omit section 19 (5). Insert instead:
(5) A nomination must:
(a) be made in writing addressed to the Chairperson of the
Scientific Committee, and
(b) include any information prescribed by the regulations,
and
(c) be made in accordance with any guidelines for the
making of nominations published from time to time by
the Director-General and the Scientific Committee.
[21] Section 19A
Insert after section 19:
19A Referral of nomination to Fisheries Scientific Committee
(1) If, in the opinion of the Chairperson of the Scientific
Committee, a nomination of a key threatening process relates
to a threatening process that is likely to have an impact on both
terrestrial and aquatic environments, the Chairperson may
consult with the Chairperson of the Fisheries Scientific
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
Committee for the purpose of determining whether the
nomination should also be considered by the Fisheries
Scientific Committee under Part 7A of the Fisheries
Management Act 1994.
(2) If the Chairpersons agree that the nomination should also be
considered by the Fisheries Scientific Committee under Part 7A
of the Fisheries Management Act 1994, the nomination is to be
referred to the Fisheries Scientific Committee for
consideration.
(3) In such a case:
(a) the nomination is taken to also be a nomination for
amendment of Schedule 6 to that Act, made to the
Fisheries Scientific Committee in accordance with
Part 7A of that Act on the date the Chairpersons agree
that it should also be considered by the Fisheries
Scientific Committee under Part 7A of the Fisheries
Management Act 1994, and
(b) Part 7A of that Act applies in relation to the nomination
(in addition to this Division).
(4) For the purposes of this section, a nomination of a key
threatening process means:
(a) the nomination of any matter to be inserted in or omitted
from Schedule 3, or
(b) the nomination of any matter in Schedule 3 for
amendment.
Note. There is a reciprocal process in Part 7A of the Fisheries
Management Act 1994 for the referral of nominations made under that
Part to the Scientific Committee in appropriate cases.
[22] Section 22 Scientific Committee's preliminary determination
Omit "and the reasons for it" from section 22 (2) (c).
[23] Section 22 (3) (b)
Omit the paragraph. Insert instead:
(b) specify the manner in which members of the public may
obtain a copy of the determination and the reasons for
it, and
Page 10
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[24] Section 22 (3) (c)
Omit "Director-General". Insert instead "Scientific Committee".
[25] Section 22 (5)
Insert "not less than 30 days and" after "being a date occurring".
[26] Section 22 (6)
Insert after section 22 (5):
(6) Copies of a preliminary determination and the reasons for it are
to be made available to members of the public (free of charge)
as follows:
(a) by publication on the internet site of the National Parks
and Wildlife Service,
(b) in response to a request made by contacting an office of
the National Parks and Wildlife Service in a manner
specified in the notice of the determination,
(c) in response to a request made in person at an office of
the National Parks and Wildlife Service at an address
specified in the notice of the determination.
[27] Section 23 Scientific Committee's final determination
Omit section 23 (2). Insert instead:
(2) In a case involving a nomination, the Scientific Committee
must make a determination within 6 months after the closing
date for making submissions to the Scientific Committee about
its preliminary determination on the matter (as specified in the
notice under section 22).
[28] Section 24 Publication of final determination
Omit "and the reasons for it" from section 24 (c).
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[29] Section 24 (2) and (3)
Insert at the end of section 24:
(2) The notice must specify the manner in which members of the
public may obtain a copy of the determination and the reasons
for it.
(3) Copies of the final determination and the reasons for it are to
be made available to members of the public (free of charge) as
follows:
(a) by publication on the internet site of the National Parks
and Wildlife Service,
(b) in response to a request made by contacting an office of
the National Parks and Wildlife Service in a manner
specified in the notice of the determination,
(c) in response to a request made in person at an office of
the National Parks and Wildlife Service at an address
specified in the notice of the determination.
[30] Section 33 Publication of determination for provisional listing
Omit "and the reasons for it" from section 33 (c).
[31] Section 33 (2) and (3)
Insert at the end of section 33:
(2) The notice must specify the manner in which members of the
public may obtain a copy of the determination and the reasons
for it.
(3) Copies of the determination and the reasons for it are to be
made available to members of the public (free of charge) as
follows:
(a) by publication on the internet site of the National Parks
and Wildlife Service,
(b) in response to a request made by contacting an office of
the National Parks and Wildlife Service in a manner
specified in the notice of the determination,
(c) in response to a request made in person at an office of
the National Parks and Wildlife Service at an address
specified in the notice of the determination.
Page 12
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[32] Part 2, Division 5
Insert after Division 4:
Division 5 Minor changes to listings
36A Minor amendments to Schedules
(1) The Scientific Committee may determine to amend the
description of any species, population, ecological community
or threatening process in Schedule 1, 2 or 3, without following
the procedure set out in Division 3 or 4, if, in the opinion of the
Scientific Committee, the amendment is necessary or desirable
for any of the following purposes:
(a) to reflect any change in the name of a species as a result
of taxonomic revision,
(b) to correct any minor error or omission,
(c) to clarify a description of an ecological community
(including to reflect new surveys or research
information).
(2) A determination under this Division must not alter the listing
status of a particular species or ecological community by:
(a) moving the description of the species or ecological
community from one Schedule to the Act to another
Schedule, or
(b) moving the description of a species from Part 1 of
Schedule 1 to Part 4 of Schedule 1 (or vice versa).
(3) A determination under this Division must not alter the
particular area of any ecological community.
(4) The procedures for inserting matters in Schedule 1, 2 or 3 set
out in Divisions 3 and 4 do not apply to a determination made
under this Division.
36B Publication of determination
(1) On making a determination under this Division, the Scientific
Committee must, as soon as practicable:
(a) notify the Minister and the Director-General of the
determination, and
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
(b) publish notice of the determination in a newspaper
circulating generally throughout the State, and
(c) if the original determination was considered likely to
affect a particular area or areas (other than the State as
a whole), publish notice of the determination under this
Division in a newspaper circulating generally in that
area or areas, and
(d) publish notice of the making of the determination in the
Gazette.
(2) The notice must specify the manner in which members of the
public may obtain a copy of the determination and the reasons
for it.
(3) Copies of the determination and the reasons for it are to be
made available to members of the public (free of charge) as
follows:
(a) by publication on the internet site of the National Parks
and Wildlife Service,
(b) in response to a request made by contacting an office of
the National Parks and Wildlife Service in a manner
specified in the notice of the determination,
(c) in response to a request made in person at an office of
the National Parks and Wildlife Service at an address
specified in the notice of the determination.
(4) In this section:
original determination means the final determination of the
Scientific Committee that resulted in a description of a species,
population, ecological community or threatening process being
inserted in Schedule 1, 2 or 3.
36C Revision of Schedule on publication of determination
On the publication of a determination in the Gazette that the
description of a species, population, ecological community or
threatening process listed in Schedule 1, 2 or 3 be amended
under this Division, the relevant Schedule is amended:
(a) by omitting the description of the species, population,
ecological community or threatening process that is set
out in the Schedule, and
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(b) by inserting instead a description of the species,
population, ecological community or threatening process
in the manner required by the determination.
[33] Section 39
Omit the section. Insert instead:
39 Director-General to consult with Scientific Committee
The Director-General must:
(a) consult with the Scientific Committee before preparing
a recommendation for the identification of an area or
areas of land comprising critical habitat for the purposes
of this Act, and
(b) have regard to its advice in preparing any
recommendation for that purpose.
[34] Sections 40 (1) and 41 (1)
Omit "a species, population or ecological community" wherever occurring.
Insert instead "an endangered species, population or ecological community".
[35] Section 43 Director-General to refer recommendation to Minister
Omit "the species, population or ecological community" from section 43 (a).
Insert instead "the endangered species, population or ecological
community".
[36] Section 48 Publication of declaration of critical habitat
Insert ", in particular, the Valuer-General" after "land" in section 48 (a) (ii).
[37] Section 56 Director-General to prepare recovery plans
Omit section 56 (3). Insert instead:
(3) The Director-General may also prepare recovery plans for
vulnerable ecological communities.
(4) A recovery plan under this Act may contain provisions for
more than one species, population or ecological community.
Page 15
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
(5) A recovery plan must be prepared as follows:
(a) in the case of a recovery plan for an endangered species,
endangered population or endangered ecological
community--within 3 years after the description of the
species, population or ecological community is first
inserted in Schedule 1,
(b) in the case of a recovery plan for a vulnerable
species--within 5 years after the description of the
species is first inserted in Schedule 2,
(c) in the case of a recovery plan that contains provisions
relevant to more than one species, population or
ecological community--within the time limit that would
apply under paragraph (a) or (b) if the plan related solely
to whichever species, population or ecological
community to which the plan relates was most recently
inserted in Schedule 1 or 2.
Note. The time limits for the making of recovery plans under this Act
correspond to the time limits for making recovery plans under the
Environment Protection and Biodiversity Conservation Act 1999 of the
Commonwealth for endangered and vulnerable categories of listed
threatened species and listed threatened ecological communities that
occur in and outside a Commonwealth area.
(6) If the Director-General decides to prepare a recovery plan for
a vulnerable ecological community, the recovery plan is to be
prepared within 5 years after that decision is made. The time
limit referred to in subsection (5) also applies if the plan is also
to contain provisions relevant to an endangered species,
population or ecological community, or a vulnerable species.
[38] Section 56A
Insert after section 56:
56A Joint preparation of recovery plans
(1) The Director-General may, with the prior approval of the
Minister and the Minister administering the Fisheries
Management Act 1994, make arrangements with the Director
of NSW Fisheries for the joint preparation of a recovery plan
under this Act and Part 7A of the Fisheries Management
Act 1994.
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(2) In such a case, any function of the Director-General or the
Minister under this Part in respect of the plan may be exercised
in conjunction with any corresponding function of the Director
of NSW Fisheries or the Minister administering the Fisheries
Management Act 1994 in respect of the plan under the
Fisheries Management Act 1994.
Note. For example, the Director-General and the Director of NSW
Fisheries may jointly publish a notice of the preparation of the plan under
section 61 of this Act and section 220ZO of the Fisheries Management
Act 1994.
(3) The Minister may exercise his or her functions under
sections 64 and 65 of this Act in respect of any such plan only
with the concurrence of the Minister administering the
Fisheries Management Act 1994.
(4) If the Minister administering this Act and the Minister
administering the Fisheries Management Act 1994 are unable,
following consultation, to resolve any dispute as to the exercise
of any function under sections 64 and 65 of this Act in respect
of any such plan, the matter is to be referred to the Premier for
resolution. The decision of the Premier in relation to the matter
is to be given effect to by the Ministers.
(5) Except as otherwise provided by this section, this Part applies
in respect of a recovery plan jointly prepared as provided for by
this section in the same way as it applies in respect of any other
recovery plan.
[39] Section 57 Guidelines for recovery plans
Insert after section 57 (2):
(3) The Director-General is also to consider, when preparing a
recovery plan, any special knowledge or interest that
indigenous people may have in the species, population or
ecological community concerned and in the measures to be
contained in the plan (including the likely social, cultural and
economic consequences of the making of the plan).
Page 17
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[40] Section 58 Priorities for recovery plans
Omit section 58 (2). Insert instead:
(2) The highest priority is to be given to the preparation of
recovery plans for species and ecological communities that are
identified by asterisks in Schedule 1 as being threatened
nationally.
[41] Section 59 Contents of recovery plans
Insert after section 59 (f):
(f1) state performance indicators that are to be applied to
measure whether the actions identified in the plan are
being implemented and are successfully promoting the
recovery of the species, population or ecological
community, and
[42] Section 60 Consultation between chief executive officers
Omit section 60 (1). Insert instead:
(1) The Director-General must, if the Director-General considers
that a public authority should be responsible for the
implementation of a measure to be included in a recovery plan,
consult with the chief executive officer of the public authority
before completing the preparation of the draft recovery plan.
[43] Section 60 (2)
Omit "Minister responsible for".
Insert instead "chief executive officer of".
[44] Section 65 Approval of recovery plan by Minister
Insert after section 65 (2):
(3) Without limiting subsection (2), the Minister may refuse to
approve a plan or refer it back to the Director-General for
further consideration on the basis that the plan does not comply
with the requirements of this Act.
Page 18
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[45] Section 66A
Insert after section 66:
66A Advice of Scientific Committee to be included in plan
The recovery plan approved by the Minister must include a
summary of any advice given by the Scientific Committee with
respect to the plan, details of any amendments made to the plan
to take account of that advice and a statement of the reasons for
any departure from that advice.
[46] Section 74
Omit the section. Insert instead:
74 Director-General may prepare threat abatement plans
(1) The Director-General may prepare a threat abatement plan for
each key threatening process to manage the threatening process:
(a) so as to abate, ameliorate or eliminate its adverse effects
on threatened species, populations or ecological
communities, or
(b) in the case of a key threatening process that could cause
species, populations or ecological communities that are
not threatened to become threatened, so as to prevent
those species, populations or ecological communities
from becoming threatened.
(2) A threat abatement plan may contain provisions relevant to
more than one key threatening process.
(3) A threat abatement plan for any key threatening process that
adversely affects a threatened species, population or ecological
community must be prepared:
(a) within 3 years after the description of the key
threatening process is first inserted in Schedule 3, or
(b) in the case of a threat abatement plan that contains
provisions relevant to more than one key threatening
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
process--within the time limit that would apply under
paragraph (a) if the plan related solely to whichever
threatening process to which the plan relates was most
recently inserted in Schedule 3.
Note. The time limit for the preparation of a threat abatement plan
corresponds with the time limit for the preparation of a threat abatement
plan under the Environment Protection and Biodiversity Conservation
Act 1999 of the Commonwealth, if the Minister under that Act has made
a decision to have a threat abatement plan.
(4) There is no time limit for the preparation of a threat abatement
plan for any key threatening process that could cause species,
populations or ecological communities to become threatened,
but subsection (3) applies if the plan is also to contain
provisions relevant to a key threatening process of a kind
referred to in that subsection.
[47] Section 74A
Insert after section 74:
74A Joint preparation of threat abatement plans
(1) The Director-General may, with the prior approval of the
Minister and the Minister administering the Fisheries
Management Act 1994, make arrangements with the Director
of NSW Fisheries for the joint preparation of a threat abatement
plan under this Act and Part 7A of the Fisheries Management
Act 1994.
(2) In such a case, any function of the Director-General or the
Minister under this Part in respect of the plan may be exercised
in conjunction with any corresponding function of the Director
of NSW Fisheries or the Minister administering the Fisheries
Management Act 1994 in respect of the plan under the
Fisheries Management Act 1994.
Note. For example, the Director-General and the Director of NSW
Fisheries may jointly publish a notice of the preparation of the plan under
section 79 of this Act and section 220ZO of the Fisheries Management
Act 1994.
(3) The Minister may exercise his or her functions under
sections 82 and 83 of this Act in respect of any such plan only
with the concurrence of the Minister administering the
Fisheries Management Act 1994.
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(4) If the Minister administering this Act and the Minister
administering the Fisheries Management Act 1994 are unable,
following consultation, to resolve any dispute as to the exercise
of any function under sections 82 and 83 of this Act in respect
of any such plan, the matter is to be referred to the Premier for
resolution. The decision of the Premier in relation to the matter
is to be given effect to by the Ministers.
(5) Except as otherwise provided by this section, this Part applies
in respect of a threat abatement plan that is jointly prepared as
provided for by this section in the same way as it applies in
respect of any other threat abatement plan.
[48] Section 75 Guidelines for threat abatement plans
Insert after section 75 (2):
(3) The Director-General is also to consider, when preparing a
threat abatement plan, any special knowledge or interest that
indigenous people may have in the species, population or
ecological community concerned and in the measures to be
contained in the plan (including the likely social, cultural and
economic consequences of the making of the plan).
[49] Section 78 Consultation between chief executive officers
Omit section 78 (1). Insert instead:
(1) The Director-General must, if the Director-General considers
that a public authority should be responsible for the
implementation of a measure to be included in a threat
abatement plan, consult with the chief executive officer of the
public authority before completing the preparation of the draft
threat abatement plan.
[50] Section 78 (2)
Omit "Minister responsible for".
Insert instead "chief executive officer of".
Page 21
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[51] Part 6, Introductory note
Omit the introductory note. Insert instead:
Introductory note
This Part deals with the licensing by the Director-General of actions that
are likely to result in:
(a) the harming of an animal that is of, or part of, a threatened
species, population or ecological community, or
(b) the picking of a plant that is of, or part of, a threatened species,
population or ecological community, or
(c) damage to critical habitat, or
(d) damage to habitat of a threatened species, population or
ecological community.
The offences relating to the above actions are set out in the National Parks
and Wildlife Act 1974.
This Part also contains provisions about species impact statements. These
statements are employed to measure the significance of the effect of
actions on threatened species, populations or ecological communities, or
their habitats. A species impact statement must be lodged with an
application for a licence under this Part if the Director-General determines
that the action proposed is likely to significantly affect threatened species,
populations or ecological communities, or their habitats.
Division 1 deals with the grant of licences, including the making of
applications, fees, determinations as to whether actions proposed will
significantly affect threatened species, populations or ecological
communities, publication of applications and the making of submissions
concerning them, and matters that the Director-General must take into
account before granting licences and appeals.
Division 2 deals with the form and content of species impact statements
and the notification of the Director-General's requirements as to their
preparation.
Division 3 sets out exceptions to licensing requirements.
Division 4 sets out miscellaneous provisions.
[52] Section 91
Omit the section. Insert instead:
91 Licence to harm or pick threatened species, populations or
ecological communities or damage habitat
(1) The Director-General may grant a licence authorising a person
to take action likely to result in one or more of the following:
(a) harm to any animal that is of, or is part of, a threatened
species, population or ecological community,
(b) the picking of any plant that is of, or is part of, a
threatened species, population or ecological community,
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(c) damage to critical habitat,
(d) damage to habitat of a threatened species, population or
ecological community.
(2) A general licence may be issued under section 120 of the
National Parks and Wildlife Act 1974 to authorise an action
referred to in subsection (1) only:
(a) for the welfare of an animal, or
(b) if there is a threat to life or property.
(3) Subsection (2) does not limit the purposes for which a licence
may be issued under this section.
Note. For example, a licence may be issued under this section to
authorise an Aboriginal person or persons to harm animals or pick plants
for cultural purposes.
[53] Section 94 Significant effect on threatened species, populations or
ecological communities, or their habitats
Omit section 94 (2). Insert instead:
(2) For that purpose, the Director-General must take into account
the following:
(a) each of the factors listed in subsection (3),
(b) any assessment guidelines issued and in force under
section 94A.
(3) The following factors must be taken into account in making a
determination under this section:
(a) in the case of a threatened species, whether the action
proposed is likely to have an adverse effect on the life
cycle of the species such that a viable local population
of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the
action proposed is likely to have an adverse effect on
the life cycle of the species that constitutes the
endangered population such that a viable local
population of the species is likely to be placed at risk of
extinction,
(c) in the case of an endangered ecological community,
whether the action proposed:
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
(i) is likely to have an adverse effect on the extent
of the ecological community such that its local
occurrence is likely to be placed at risk of
extinction, or
(ii) is likely to substantially and adversely modify
the composition of the ecological community
such that its local occurrence is likely to be
placed at risk of extinction,
(d) in relation to the habitat of a threatened species,
population or ecological community:
(i) the extent to which habitat is likely to be
removed or modified as a result of the action
proposed, and
(ii) whether an area of habitat is likely to become
fragmented or isolated from other areas of
habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed,
modified, fragmented or isolated to the long-
term survival of the species, population or
ecological community in the locality,
(e) whether the action proposed is likely to have an adverse
effect on critical habitat (either directly or indirectly),
(f) whether the action proposed is consistent with the
objectives or actions of a recovery plan or threat
abatement plan,
(g) whether the action proposed constitutes or is part of a
key threatening process or is likely to result in the
operation of, or increase the impact of, a key threatening
process.
[54] Section 94A
Insert after section 94:
94A Assessment guidelines
(1) The Minister may, by order published in the Gazette, issue
guidelines (assessment guidelines) relating to the
determination of whether an action is likely to significantly
affect threatened species, populations or ecological
communities, or their habitats.
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(2) An order under this section (including any order that amends,
revokes or replaces such an order) may be made only with the
concurrence of the Minister for Planning.
[55] Section 96 Publication of licence application
Omit the section. Insert instead:
96 Publication of licence application
(1) The Director-General is to keep a register of licence
applications made under this Act.
(2) The Director-General must, within 7 days after receiving a
licence application, cause a copy of the application to be placed
on the register.
(3) The register is not to include any information the disclosure of
which would contravene the Privacy and Personal Information
Protection Act 1998.
(4) Copies of the register are to be made available for public
inspection (free of charge) at the principal office of the National
Parks and Wildlife Service and on the internet site maintained
by the National Parks and Wildlife Service.
(5) If the licence application is accompanied by a species impact
statement or a species impact statement is provided in response
to a notification from the Director-General that a statement is
required, the Director-General must cause to be placed in a
newspaper circulating throughout the State a notice:
(a) outlining the nature of the application, and
(b) specifying the address of the place at which copies of
the species impact statement may be inspected or
purchased, and
(c) inviting written submissions within a period of not less
than 28 days after the date of the notice.
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[56] Section 96A
Insert after section 96:
96A Sale of copies of species impact statement
(1) The Director-General may require an applicant for a licence to
provide additional copies of a species impact statement that
accompanied the application or was provided in response to a
notification from the Director-General that a statement is
required.
(2) The Director-General may refuse to grant an application if that
direction is not complied with.
(3) Copies of the species impact statement may be sold by the
Director-General to any member of the public for not more
than $25 a copy (or such other amount as may be prescribed by
the regulations).
(4) The Director-General must:
(a) pay the proceeds of sale of copies of the species impact
statement to the applicant, and
(b) return to the applicant any unsold copies of the species
impact statement.
[57] Section 101 Conditions and restrictions to licence
Insert after section 101 (2) (after the note):
(3) The Audit and Compliance Committee established under
section 9 of the National Parks and Wildlife Act 1974 is to
monitor the conditions attached to licences by the
Director-General, for the purpose of overseeing the compliance
of the Director-General with his or her obligations under
this Act.
[58] Section 103 Notification of licence determination
Insert at the end of the section:
(2) The Director-General must give a copy of the reasons for his or
her determination of a licence application:
(a) to the applicant, and
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(b) to any person who asks for it (either free or for a
reasonable charge determined by the Director-General).
[59] Section 110 Content of species impact statement
Insert after section 110 (2) (d):
(e) an assessment of whether those species or populations
are adequately represented in conservation reserves (or
other similar protected areas) in the region,
(e1) an assessment of whether any of those species or
populations is at the limit of its known distribution,
[60] Section 110 (3) (b1) and (b2)
Insert after section 110 (3) (b):
(b1) an assessment of whether those ecological communities
are adequately represented in conservation reserves (or
other similar protected areas) in the region,
(b2) an assessment of whether any of those ecological
communities is at the limit of its known distribution,
[61] Section 113 Director-General may accredit persons to prepare species
impact statements
Omit "assessment reports on" from section 113 (1).
[62] Section 113 (3A)
Insert after section 113 (3):
(3A) Without limiting subsection (3), an accreditation is to include
conditions that require a species impact statement to be
prepared in accordance with survey standards approved from
time to time by the Director-General by order published in the
Gazette.
Page 27
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[63] Part 6, Division 3
Insert after Division 2:
Division 3 Exceptions to licensing requirements
113A Routine agricultural activities
(1) A licence under this Part is not required for the carrying out of
routine agricultural activities unless the actions are actions, or
are of a class of actions, that the regulations prescribe may be
carried out only under the authority of a licence under this Part.
(2) The Minister must not recommend the making of a regulation
that identifies actions, or of a class of actions, that may be
carried out only under the authority of a licence under this Part
unless the Minister certifies that the Director-General has
consulted with the Director-General of the Department of
Agriculture concerning the making of the regulation.
(3) It is a defence to a prosecution for an offence under Part 8A of
the National Parks and Wildlife Act 1974 if the accused proves
that the action constituting the alleged offence was a routine
agricultural activity.
113B Property management plans
(1) The Director-General may, for the purposes of this Act,
approve of a property management plan for land prepared by a
landholder.
(2) In determining whether to approve a property management
plan, the Director-General must take into account such matters
as may be prescribed by the regulations.
(3) The Minister is to endeavour to ensure that regulations are
made for the purposes of subsection (2) within 6 months after
the commencement of that subsection.
(4) Any action identified in, and carried out in accordance with, a
property management plan so approved by the
Director-General does not require a licence under this Part even
if the action is an action, or of a class of actions, that may, in
accordance with the regulations, be carried out only under the
authority of a licence under this Part.
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
(5) Without limiting subsection (4), a property management plan
may include provisions that authorise persons other than the
landholder to take any action on or in respect of land. For
example, provisions that authorise Aboriginal persons to harm
animals or pick plants on the land that is the subject of the
property management plan may be included.
(6) It is a defence to a prosecution for an offence under Part 8A of
the National Parks and Wildlife Act 1974 if the accused proves
that the action constituting the alleged offence was identified in,
and carried out in accordance with, a property management
plan approved by the Director-General for the purposes of this
Act.
(7) Nothing in this section prevents the Director-General from
granting a licence under this Part to a landholder or to any other
person to authorise the person to take any action referred to in
section 91 (1).
(8) For the avoidance of doubt, it is declared that the Director-
General is not a determining authority for the purposes of
Part 5 of the Environmental Planning and Assessment Act 1979
when approving a property management plan.
Division 4 Miscellaneous
113C Transitional--effect of changes to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply
in respect of an application for a licence duly made under
section 92 before the amendment took effect.
(2) This section ceases to apply in respect of an application for a
licence at the end of the period of 12 months after the
application is made.
[64] Section 121 Joint management agreements
Insert at the end of the section the following note:
Note. It is a defence to certain offences under the National Parks and
Wildlife Act 1974 if the act constituting the offence was authorised by and
done in accordance with a joint management agreement.
Page 29
Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[65] Part 7, Division 3
Insert after Division 2 of Part 7:
Division 3 Conservation agreements
126A Conservation agreements
(1) A conservation agreement relating to land that is entered into
under the National Parks and Wildlife Act 1974 for the purpose
of the conservation of critical habitat or the conservation of
threatened species, populations or ecological communities, or
their habitats, may make provision for assistance in connection
with the following:
(a) maintaining and promoting sustainable farming practices
and achieving the objects of this Act,
(b) implementing the requirements of a recovery plan that
relates to the land (if appropriate),
(c) ensuring the continued and appropriate agricultural use
of the land by the owner of the land.
(2) This section does not limit section 69C of the National Parks
and Wildlife Act 1974.
[66] Section 129 Members of Scientific Committee
Omit "10 members" from section 129 (1).
Insert instead "11 members".
[67] Section 129 (2) (b1)
Insert after section 129 (2) (b):
(b1) one is to be a scientist who is employed by a public
authority that has land management responsibilities and
who is selected by the Minister,
[68] Section 129 (3) (g)
Omit the paragraph. Insert instead:
(g) aquatic biology,
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Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[69] Section 129 (4)
Insert after section 129 (3):
(4) If the person or body responsible for nominating a member of
the Scientific Committee under this section (the nominating
body) fails to submit a nomination to the Minister, within such
time and in such manner as may be specified by the Minister by
notice in writing to the nominating body, the Minister:
(a) may seek a nomination from any other person or body
that the Minister considers to be a suitable substitute for
the nominating body, and
(b) may appoint any scientist nominated, or employed and
nominated, by that other person or body as a member of
the Scientific Committee, in place of a scientist
nominated, or employed and nominated, by the
nominating body.
[70] Section 130 Provisions relating to members of Scientific Committee
Insert after section 130 (1):
(1A) A person who serves as a member of the Scientific Committee
for 2 consecutive periods is not eligible to be a member of the
Scientific Committee for 3 years after the end of those
consecutive periods.
(1B) In determining the term of office to be provided for by a
member's instrument of appointment, the Minister is to have
regard to the desirability of maintaining some continuity of
membership of the Committee. That is, the Minister is to
endeavour to ensure that the terms of office of all members do
not expire at or about the same time.
[71] Section 137 Biological Diversity Advisory Council
Omit "14 members" from section 137 (2).
Insert instead "15 members".
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
[72] Section 137 (2) (c)
Omit the paragraph. Insert instead:
(c) 4 scientists, one each to be selected by the Minister from
3 nominees of the Ecological Society of Australia, 3
nominees of the Australian Museum, 3 nominees of the
National Biodiversity Council and 3 nominees of the
Royal Botanic Gardens and Domain Trust,
[73] Section 137 (3)
Insert after section 137 (2):
(3) If the person or body responsible for nominating members of
the Advisory Council under this section (the nominating body)
fails to submit a nominee or the required number of nominees
to the Minister, within such time and in such manner as may be
specified by the Minister by notice in writing to the nominating
body, the Minister:
(a) may seek a nominee or additional nominees from any
other person or body that the Minister considers to be a
suitable substitute for the nominating body, and
(b) may appoint any person nominated by that other person
or body as a member of the Advisory Council, in place
of a nominee of the nominating body.
[74] Section 143 Annual report by Director-General on operation of Act
Insert at the end of section 143:
(2) The report is to include a report on the implementation of
Parts 3, 4 and 5 of this Act.
[75] Section 146 Decision not to disclose location of critical habitat
Re-number section 146 (1) as section 146 (1A) and insert before
section 146 (1A) (as so re-numbered):
(1) The Director-General may, by notice in writing, determine that
any matter in any document in the possession of the National
Parks and Wildlife Service that may identify the location of
Page 32
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
critical habitat or any area or areas of land proposed to be
identified as critical habitat should not be disclosed to the
public.
[76] Section 146 (2)
Omit "may exercise the function under subsection (1)".
Insert instead "may exercise a function under subsection (1) or (1A)".
[77] Section 146, note
Insert at the end of the section:
Note. A document that contains matter that is the subject of a
determination referred to in subsection (1) is an exempt document for the
purposes of the Freedom of Information Act 1989.
[78] Section 146A
Insert after section 146:
146A Decision not to disclose other information
(1) The Scientific Committee may make a written recommendation
to the Minister that the following matter should not be
disclosed to the public:
(a) information provided to the Scientific Committee
relating to the location of threatened species,
populations or ecological communities,
(b) information provided to the Scientific Committee that
may identify any individual who made a nomination
under Part 2 or made a submission in respect of a
nomination.
(2) The Minister may, by notice in writing:
(a) accept the recommendation of the Committee that the
matter should not be disclosed to the public, or
(b) reject the recommendation of the Scientific Committee.
(3) The Minister may accept a recommendation referred to in
subsection (1) (a) only if the Minister is of the opinion that the
public interest requires that the matter not be disclosed.
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Threatened Species Conservation Amendment Bill 2002
Schedule 1 Amendment of Threatened Species Conservation Act 1995
(4) The Minister may accept a recommendation referred to in
subsection (1) (b) only if the Minister is of the opinion that the
matter should not be disclosed:
(a) in the interests of safety or welfare of the individual who
might otherwise be identified, or
(b) to protect that individual against intimidation,
harassment or other unwarranted reprisals in connection
with the nomination or submission.
[79] Schedule 2
Omit the heading. Insert instead:
Schedule 2 Vulnerable species and ecological
communities
(Sections 7 and 7A)
Part 1 Vulnerable species
[80] Schedule 2, Part 2
Insert at the end of the Schedule:
Part 2 Vulnerable ecological communities
[81] Schedule 7 Savings, transitional and other provisions
Omit clause 1 (1). Insert instead:
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of:
this Act
Threatened Species Conservation Amendment Act 2002
Page 34
Threatened Species Conservation Amendment Bill 2002
Amendment of Threatened Species Conservation Act 1995 Schedule 1
[82] Schedule 7, clause 1 (2)
Omit "this Act". Insert instead "the Act concerned".
[83] Schedule 7, Part 4
Insert after Part 3:
Part 4 Provisions consequent on Threatened
Species Conservation Amendment Act 2002
8 Licences under Part 6
Section 91, as substituted by the Threatened Species
Conservation Amendment Act 2002, does not apply in respect
of a licence issued under Part 6 before that substitution.
9 Accreditation arrangements
The Director-General is to ensure that the arrangements
referred to in section 113 (1), as amended by the Threatened
Species Conservation Amendment Act 2002, and the survey
standards referred to in section 113 (3A), as inserted by that
Act, are instituted or approved within 18 months after the date
of assent to that Act.
10 Re-appointment of members of Scientific Committee
Section 130 (1A), as inserted by the Threatened Species
Conservation Amendment Act 2002, does not apply in respect
of 2 consecutive periods of office served by a member of the
Scientific Committee if any part of the 2 consecutive periods
was served by the member before that subsection commenced.
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Environmental Planning and Assessment Act 1979 No 203
[1] Section 4 Definitions
Insert ", except as provided by section 5D" after "Fisheries Management
Act 1994"at the end of the definition of threatened species, populations and
ecological communities in section 4 (1).
[2] Section 4 (1), definition of "threatened species, populations and
ecological communities", note
Insert at the end of the definition:
Note. Section 5D excludes vulnerable ecological communities from this
expression.
[3] Section 4 (1)
Insert in alphabetical order:
threatened species has the same meaning as in the Threatened
Species Conservation Act 1995 or (subject to section 5C)
Part 7A of the Fisheries Management Act 1994.
vulnerable ecological community has the same meaning as in
the Threatened Species Conservation Act 1995.
[4] Section 5A
Omit the section. Insert instead:
5A Significant effect on threatened species, populations or
ecological communities, or their habitats
(1) For the purposes of this Act and, in particular, in the
administration of sections 78A, 79B, 79C, 111 and 112, the
following must be taken into account in deciding whether there
is likely to be a significant effect on threatened species,
populations or ecological communities, or their habitats:
Page 36
Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
(a) each of the factors listed in subsection (2),
(b) any assessment guidelines.
(2) The following factors must be taken into account in making a
determination under this section:
(a) in the case of a threatened species, whether the action
proposed is likely to have an adverse effect on the life
cycle of the species such that a viable local population
of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the
action proposed is likely to have an adverse effect on
the life cycle of the species that constitutes the
endangered population such that a viable local
population of the species is likely to be placed at risk of
extinction,
(c) in the case of an endangered ecological community,
whether the action proposed:
(i) is likely to have an adverse effect on the extent
of the ecological community such that its local
occurrence is likely to be placed at risk of
extinction, or
(ii) is likely to substantially and adversely modify
the composition of the ecological community
such that its local occurrence is likely to be
placed at risk of extinction,
(d) in relation to the habitat of a threatened species,
population or ecological community:
(i) the extent to which habitat is likely to be
removed or modified as a result of the action
proposed, and
(ii) whether an area of habitat is likely to become
fragmented or isolated from other areas of
habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed,
modified, fragmented or isolated to the long-
term survival of the species, population or
ecological community in the locality,
(e) whether the action proposed is likely to have an adverse
effect on critical habitat (either directly or indirectly),
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(f) whether the action proposed is consistent with the
objectives or actions of a recovery plan or threat
abatement plan,
(g) whether the action proposed constitutes or is part of a
key threatening process or is likely to result in the
operation of, or increase the impact of, a key threatening
process.
(3) In this section:
assessment guidelines means assessment guidelines issued and
in force under section 94A of the Threatened Species
Conservation Act 1995 or, subject to section 5C,
section 220ZZA of the Fisheries Management Act 1994.
key threatening process has the same meaning as in the
Threatened Species Conservation Act 1995 or, subject to
section 5C, Part 7A of the Fisheries Management Act 1994.
[5] Section 5C Application of Act with respect to threatened species
conservation--fish and marine vegetation
Insert after section 5C (2):
(3) In this section:
fish has the same meaning as in Part 7A of the Fisheries
Management Act 1994.
marine vegetation has the same meaning as in Part 7A of the
Fisheries Management Act 1994.
[6] Section 5D
Insert after section 5C:
5D Application of Act to vulnerable ecological communities
(1) In this Act, a reference to threatened species, populations and
ecological communities or threatened species, population or
ecological community (however expressed) does not include
a reference to any vulnerable ecological community.
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
(2) However, this section does not affect the application of this Act
to any threatened species or endangered population that forms
part of a vulnerable ecological community.
Note. Vulnerable ecological communities are generally excluded from the
provisions of this Act relating to threatened species, populations and
ecological communities, including provisions that require the concurrence
of the Director-General of National Parks and Wildlife or the Minister
administering the Threatened Species Conservation Act 1995, or the
preparation of a species impact statement, in respect of development or
an activity that is likely to have a significant effect on threatened species,
populations or ecological communities (subject to subsection (2) above).
However, vulnerable ecological communities are relevant to the
preparation of environmental planning instruments under section 26.
[7] Section 26 Contents of environmental planning instruments
Insert after section 26 (1):
(1A) An environmental planning instrument may also make
provision for or with respect to protecting and conserving
vulnerable ecological communities.
(1B) Despite subsection (1A), an environmental planning instrument
must not contain any provision that requires a consent
authority, before determining a development application
relating to development that may affect a vulnerable ecological
community:
(a) to consult with the Director-General of National Parks
and Wildlife or the Minister administering the
Threatened Species Conservation Act 1995 about the
effect of the development on the vulnerable ecological
community, or
(b) to obtain the concurrence of the Director-General of
National Parks and Wildlife or the Minister
administering the Threatened Species Conservation
Act 1995 in respect of the development because of its
possible effect on the vulnerable ecological community.
[8] Section 26, note
Insert at the end of the section:
Note. Section 5C provides that a reference to the Threatened Species
Conservation Act 1995, in relation to the critical habitat of fish or marine
vegetation, is taken to be a reference to Part 7A of the Fisheries
Management Act 1994.
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
[9] Section 34A Consultation with Director-General of National Parks and
Wildlife about preparation of studies or instruments
Insert at the end of the section the following note:
Note. Section 5C provides that a reference to the Director-General of
National Parks and Wildlife, in connection with the Threatened Species
Conservation Act 1995, is taken, in the case of threatened species,
populations or ecological communities of fish or marine vegetation, to be
a reference to the Director of NSW Fisheries.
[10] Section 105A
Insert after section 105:
105A Transitional--amendment to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply
in respect of any development application made under
section 78A before the amendment was made.
(2) This section ceases to apply in respect of a development
application if the application has not been determined by the
consent authority at the end of the period of 12 months after
the date the application was made under section 78A.
(3) In this section:
list of vulnerable species means Part 1 of Schedule 2 to the
Threatened Species Conservation Act 1995 or, subject to
section 5C, Schedule 5 to the Fisheries Management Act 1994.
[11] Section 110D
Insert after section 110C:
110D Transitional--amendment to list of vulnerable species
(1) For the purposes of Divisions 2 and 3 of this Part, an
amendment to the list of vulnerable species does not apply in
respect of an activity if:
(a) an environmental impact statement was obtained in
relation to that activity in accordance with this Part
before the amendment was made, and
(b) notice of the environmental impact statement has been
given as provided for by section 113 (1).
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
(2) Subsection (1) ceases to apply in respect of an activity if the
activity has not commenced to be carried out, or an approval in
relation to the activity has not been granted, by a determining
authority at the end of the period of 12 months after the date
the notice of the environmental impact statement was given
under section 113 (1).
(3) For the purposes of Division 4 of this Part, an amendment to
the list of vulnerable species does not apply in respect of an
activity to which that Division applies if the proponent sought
the Minister's approval under that Division in respect of the
activity before the amendment was made.
(4) Subsection (3) ceases to apply in respect of an activity if the
Minister has not approved the activity being carried out by the
end of the period of 12 months after the date the proponent
sought the Minister's approval under that Division.
(5) In this section:
list of vulnerable species means Part 1 of Schedule 2 to the
Threatened Species Conservation Act 1995 or, subject to
section 5C, Schedule 5 to the Fisheries Management Act 1994.
[12] Section 112 Decision of determining authority in relation to certain
activities
Insert after section 112 (1B):
(1C) An environmental impact statement is not required (despite
subsection (1) (a)) in respect of an activity that:
(a) is on land that is, or is part of, critical habitat, or is likely
to significantly affect threatened species, populations or
ecological communities, or their habitats, and
(b) is not likely to significantly affect the environment
except as described in paragraph (a),
if the determining authority has obtained or been furnished with
a species impact statement in respect of the activity, prepared
in accordance with Division 2 of Part 6 of the Threatened
Species Conservation Act 1995. However, the provisions of this
Part relating to environmental impact statements (other than
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
subsection (1) (a) (i)) apply to the species impact statement as
if references to an environmental impact statement included a
reference to the species impact statement.
[13] Section 112C Concurrence of or consultation with Director-General of
National Parks and Wildlife if Minister is not determining authority
Insert after section 112C (3):
(4) The Director-General of National Parks and Wildlife or, in a
case where the Minister administering the Threatened Species
Conservation Act 1995 has elected to act in the place of the
Director-General, the Minister may, on the request of a
determining authority that proposes to carry out or grant an
approval to carry out an activity referred to in subsection (1),
modify a concurrence granted under this section by:
(a) revoking or varying a condition of the concurrence, or
(b) imposing an additional condition on the concurrence.
[14] Section 112D Matters to be considered by Director-General of National
Parks and Wildlife as concurrence authority
Insert at the end of the section:
(2) Before the Director-General of National Parks and Wildlife or
the Minister administering the Threatened Species
Conservation Act 1995 decides to modify a concurrence in
respect of an activity under section 112C he or she must:
(a) give notice of the proposed decision to any person who
made representations under section 113 concerning the
species impact statement in respect of the activity, and
(b) provide the person with an opportunity to make
submissions with respect to the proposed decision
within a period specified in the notice (being a period of
not less than 28 days after the date of the notice), and
(c) have regard to any submissions made to him or her in
accordance with the notice within the period so
specified.
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
[15] Section 115S
Insert after section 115R:
115S Transitional--amendment to list of vulnerable species
(1) An amendment to the list of vulnerable species does not apply
in respect of a designated fishing activity if:
(a) an environmental impact statement was prepared in
relation to that activity in accordance with this Part
before the amendment was made, and
(b) notice of the environmental impact statement has been
given as provided for by section 115L.
(2) Subsection (1) ceases to apply in respect of a designated fishing
activity if a determination under section 115O has not been
made in respect of the activity at the end of the period of 12
months after the date the notice of the environmental impact
statement was given under section 115L.
(3) In this section:
list of vulnerable species means Part 1 of Schedule 2 to the
Threatened Species Conservation Act 1995 or, subject to
section 5C, Schedule 5 to the Fisheries Management Act 1994.
[16] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Threatened Species Conservation Amendment Act 2002
2.2 Fisheries Management Act 1994 No 38
[1] Section 220B Definitions
Omit the definitions of fish and marine vegetation from section 220B (1).
Insert instead in alphabetical order:
fish means any fish (as defined in section 5) that is indigenous
to New South Wales, but does not include any fish declared to
be a species of animal for the purposes of the Threatened
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
Species Conservation Act 1995 by order in force under
section 5A of that Act.
Note. Animals may be listed under the Threatened Species Conservation
Act 1995.
marine vegetation means any marine vegetation (as defined in
section 4) that is indigenous to New South Wales, but does not
include any marine vegetation declared to be a species of plant
for the purposes of the Threatened Species Conservation
Act 1995 by order in force under section 5A of that Act.
Note. Plants may be listed under the Threatened Species Conservation
Act 1995.
Threatened Species Scientific Committee means the Scientific
Committee constituted under the Threatened Species
Conservation Act 1995.
[2] Section 220BA
Insert after section 220B:
220BA Relationship of Part to Threatened Species Conservation
Act 1995
(1) The Minister may, by order made with the concurrence of the
Minister administering the Threatened Species Conservation
Act 1995:
(a) declare a species of animal to be a species of fish for the
purposes of this Act if it is an invertebrate and it is a
species that may inhabit water at some stage of its
biological development, or
(b) declare a species of plant to be a species of marine
vegetation for the purposes of this Act if it is a species
that may inhabit water (other than freshwater) at some
stage of its biological development.
(2) Any species of animal or plant that is the subject of an order in
force under this section is taken to be a species of fish or
marine vegetation for the purposes of this Part, in accordance
with the terms of the order.
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
(3) The Minister and the Minister administering the Threatened
Species Conservation Act 1995 may at any time consult with
each other for the purpose of determining whether an order
under this section should be made and the terms of the order.
(4) The Ministers may also consult with the Chairperson of the
Fisheries Scientific Committee, the Chairperson of the
Threatened Species Scientific Committee and any other person
or body before making an order under this section.
(5) If the Ministers are unable to resolve any dispute between them
as to the making or the terms of an order under this section, the
matter is to be referred to the Premier for resolution. The
decision of the Premier in relation to the matter is to be given
effect to by the Ministers.
(6) An order under this section is to be published in the Gazette.
(7) For avoidance of doubt, an order under this section does not
require the species concerned to be listed under this Part.
(8) In this section:
animal means any animal-life that is indigenous to New South
Wales or is known to periodically or occasionally migrate to
New South Wales, in any stage of biological development, but
does not include humans.
plant means any plant-life that is indigenous to New South
Wales, whether vascular or non-vascular and in any stage of
biological development, and includes fungi and lichens.
[3] Section 220IA
Insert after section 220I:
220IA Referral of nomination to Threatened Species Scientific
Committee
(1) If, in the opinion of the Chairperson of the Fisheries Scientific
Committee, a nomination of a key threatening process relates
to a threatening process that is likely to have an impact on both
terrestrial and aquatic environments, the Chairperson may
consult with the Chairperson of the Threatened Species
Scientific Committee for the purpose of determining whether
the nomination should also be considered by that Committee
under the Threatened Species Conservation Act 1995.
Page 45
Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(2) If the Chairpersons agree that the nomination should also be
considered by the Threatened Species Scientific Committee
under the Threatened Species Conservation Act 1995, the
nomination is to be referred to the Threatened Species
Scientific Committee for consideration.
(3) In such a case:
(a) the nomination is taken also to be a nomination for the
amendment of Schedule 3 to that Act, made to the
Threatened Species Scientific Committee in accordance
with Division 3 of Part 2 of that Act on the date the
Chairpersons agree that the nomination should be
referred to that Committee for consideration, and
(b) Division 3 of Part 2 of that Act applies in relation to the
nomination (in addition to this Part).
(4) For the purposes of this section, a nomination of a key
threatening process means a nomination of an amendment to
Schedule 6.
Note. There is a reciprocal process in the Threatened Species
Conservation Act 1995 for the referral of nominations made under that Act
to the Fisheries Scientific Committee in appropriate cases.
[4] Section 220ZJA
Insert after section 220ZJ:
220ZJA Joint preparation of recovery and threat abatement plans
(1) The Director may, with the prior approval of the Minister and
the Minister administering the Threatened Species
Conservation Act 1995, make arrangements with the Director-
General of National Parks and Wildlife for the joint
preparation of a recovery plan or threat abatement plan under
this Act and the Threatened Species Conservation Act 1995.
(2) In such a case, any function of the Director or the Minister
under this Part in respect of the plan may be exercised in
conjunction with any corresponding function of the Director-
Page 46
Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
General of National Parks and Wildlife or the Minister
administering the Threatened Species Conservation Act 1995
in respect of the plan under that Act.
Note. For example, the Director and the Director-General of National
Parks and Wildlife may jointly publish a notice of the preparation of the
plan under section 220ZO of this Act and section 61 or 79 of the
Threatened Species Conservation Act 1995.
(3) The Minister may exercise his or her functions under
section 220ZP of this Act in respect of any such plan only with
the concurrence of the Minister administering the Threatened
Species Conservation Act 1995.
(4) If the Minister administering this Act and the Minister
administering the Threatened Species Conservation Act 1995
are unable, following consultation, to resolve any dispute as to
the exercise of any function under section 220ZP of this Act in
respect of any such plan, the matter is to be referred to the
Premier for resolution. The decision of the Premier in relation
to the matter is to be given effect to by the Ministers.
(5) Except as otherwise provided by this section, this Part applies
in respect of a recovery plan or threat abatement plan that is
jointly prepared as provided for by this section in the same way
as it applies in respect of any other recovery plan or threat
abatement plan.
[5] Section 220ZZ Significant effect on threatened species, populations or
ecological communities, or their habitats
Omit section 220ZZ (2). Insert instead:
(2) For that purpose, the Director must take into account the
following:
(a) each of the factors listed in subsection (2A),
(b) any assessment guidelines issued and in force under
section 220ZZA.
(2A) The following factors must be taken into account in making a
determination under this section:
(a) in the case of a threatened species, whether the action
proposed is likely to have an adverse effect on the life
cycle of the species such that a viable local population
of the species is likely to be placed at risk of extinction,
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(b) in the case of an endangered population, whether the
action proposed is likely to have an adverse effect on
the life cycle of the species that constitutes the
endangered population such that a viable local
population of the species is likely to be placed at risk of
extinction,
(c) in the case of an endangered ecological community,
whether the action proposed:
(i) is likely to have an adverse effect on the extent
of the ecological community such that its local
occurrence is likely to be placed at risk of
extinction, or
(ii) is likely to substantially and adversely modify
the composition of the ecological community
such that its local occurrence is likely to be
placed at risk of extinction,
(d) in relation to the habitat of a threatened species,
population or ecological community:
(i) the extent to which habitat is likely to be
removed or modified as a result of the action
proposed, and
(ii) whether an area of habitat is likely to become
fragmented or isolated from other areas of
habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed,
modified, fragmented or isolated to the long-
term survival of the species, population or
ecological community in the locality,
(e) whether the action proposed is likely to have an adverse
effect on critical habitat (either directly or indirectly),
(f) whether the action proposed is consistent with the
objectives or actions of a recovery plan or threat
abatement plan,
(g) whether the action proposed constitutes or is part of a
key threatening process or is likely to result in the
operation of, or increase the impact of, a key threatening
process.
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
[6] Section 220ZZA
Insert after section 220ZZ:
220ZZA Assessment guidelines
(1) The Minister may, by order published in the Gazette, issue
guidelines (assessment guidelines) relating to the
determination of whether an action is likely to significantly
affect threatened species, populations or ecological
communities, or their habitats.
(2) An order under this section (including any order that amends,
revokes or replaces such an order) may be made only with the
concurrence of the Minister for Planning.
[7] Schedule 7 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Threatened Species Conservation Amendment Act 2002
2.3 Freedom of Information Act 1989 No 5
Schedule 1 Exempt documents
Insert as clause 24:
24 Documents relating to threatened species conservation
(1) A document is an exempt document if it contains matter that
the Director-General under the Threatened Species
Conservation Act 1995 has determined should not be disclosed
to the public under section 146 of that Act.
(2) A document is an exempt document if it contains matter that
the Scientific Committee under the Threatened Species
Conservation Act 1995 has recommended to the Minister
should not be disclosed to the public under section 146A of
that Act and the Minister has accepted that recommendation.
Page 49
Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
2.4 Land Tax Management Act 1956 No 26
Section 10 Land exempted from tax
Omit section 10 (1) (p1). Insert instead:
(p1) land that is the subject of a conservation agreement
entered into under the National Parks and Wildlife
Act 1974, if the primary purpose of the agreement is the
maintenance of threatened species, populations or
ecological communities (within the meaning of that Act)
to assist their preservation,
2.5 National Parks and Wildlife Act 1974 No 80
[1] Section 5 Definitions
Insert in alphabetical order in section 5 (1):
threatened species has the same meaning as in the Threatened
Species Conservation Act 1995.
[2] Section 9 Audit and compliance
Insert after section 9 (2):
(2A) The Audit and Compliance Committee has such other functions
as may be conferred or imposed on it by this or any other Act.
[3] Section 45 Provisions respecting animals in parks and sites
Omit "or a trapper's licence under section 123" from section 45 (3) (a).
Insert instead ", a trapper's licence under section 123 or a scientific licence
under section 132C".
[4] Section 56 Provisions respecting animals in nature reserves
Omit "or a trapper's licence under section 123" from section 56 (3) (a).
Insert instead ", a trapper's licence under section 123 or a scientific licence
under section 132C".
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Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
[5] Section 70 Fauna in wildlife districts, wildlife refuges and other areas
Insert ", a scientific licence under section 132C" before "or a licence under
Part 6" in section 70 (3) (a).
[6] Section 91AA Director-General may make stop work order
Omit section 91AA (4) (b). Insert instead:
(b) an activity by a determining authority within the
meaning of Part 5 of that Act if the determining
authority has complied with that Part, or
(c) an activity in accordance with an approval of a
determining authority within the meaning of Part 5 of
that Act if the determining authority has complied with
that Part.
[7] Section 98 Harming protected fauna, other than threatened species,
endangered populations or endangered ecological communities
Omit "threatened species, populations or ecological communities" from
section 98 (1).
Insert instead "threatened species, endangered populations, endangered
ecological communities".
[8] Section 98 (3) (a)
Omit "or an emu licence under section 125A".
Insert instead ", an emu licence under section 125A, a scientific licence
under section 132C".
[9] Section 98 (4)
Insert after section 98 (3):
(4) A person is not to be convicted of an offence arising under
subsection (2) if the person proves that:
(a) the act constituting the offence was authorised by, and
done in accordance with, a conservation agreement, or
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(b) the act constituting the offence was authorised by, and
done in accordance with, a joint management agreement
entered into under Part 7 of the Threatened Species
Conservation Act 1995.
[10] Section 98 (5) (b) and (c)
Omit section 98 (5) (b). Insert instead:
(b) an activity by a determining authority within the
meaning of Part 5 of that Act if the determining
authority has complied with that Part, or
(c) an activity in accordance with an approval of a
determining authority within the meaning of Part 5 of
that Act if the determining authority has complied with
that Part.
[11] Section 99 Harming threatened interstate fauna
Insert "or a scientific licence under section 132C" after "section 120" in
section 99 (2).
[12] Section 101 Buying, selling or possessing protected fauna
Insert after section 101 (6):
(7) In this section, protected fauna does not include any
threatened species or endangered population.
Note. See section 118B in relation to buying, selling or possessing an
animal or plant that is of, or is part of, a threatened species or endangered
population.
[13] Section 112F Restriction on issue of licences to take marine mammals
for exhibition etc
Omit "A general licence shall not be issued under section 120".
Insert instead "A licence is not to be issued under section 120 or
section 132C".
[14] Section 112G Approaching marine mammal
Insert ", a scientific licence under section 132C" after "a general licence
under section 120" in section 112G (3).
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Amendment of other Acts Schedule 2
[15] Section 112G (5)
Insert ", 132C, 132D" after "129".
[16] Section 117 Restriction on picking or possession of native plant
Insert after section 117 (3) (a):
(a1) the act constituting the offence was authorised by, and
done in accordance with, a conservation agreement, or
(a2) the act constituting the offence was authorised by, and
done in accordance with, a joint management
agreement entered into under Part 7 of the Threatened
Species Conservation Act 1995, or
[17] Section 117 (3) (b) (i)
Insert "or 132C" after "section 131".
[18] Section 118 Restriction on selling of native plant
Insert after section 118 (2):
(3) A person is not to be convicted of an offence arising under
subsection (1) in respect of the supply of a protected native
plant to another person if the person proves that the act
constituting the alleged offence was not done for commercial
purposes and:
(a) was done in relation to a plant that was cultivated by a
person as a hobby, and
(b) both the person who supplied the plant, and the person
to whom it was supplied, are persons who cultivate
plants as a hobby.
[19] Section 118A Harming or picking threatened species, endangered
populations or endangered ecological communities
Omit section 118A (1) (a). Insert instead:
(a) harm any animal that is of, or is part of, a threatened
species, an endangered population or an endangered
ecological community, or
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Schedule 2 Amendment of other Acts
[20] Section 118A (1) (b)
Omit "species, population or ecological community, being an".
[21] Section 118A (2)
Omit the subsection (but not the penalty). Insert instead:
(2) A person must not pick any plant that is of, or is part of, a
threatened species, an endangered population or an endangered
ecological community.
[22] Section 118A (3) (a)
Insert ", a scientific licence under section 132C" before "or a licence
granted under Part 6".
[23] Section 118A (3) (b) (ii)
Omit the sub-paragraph. Insert instead:
(ii) an activity by a determining authority within the
meaning of Part 5 of that Act if the determining
authority has complied with that Part, or
(iii) an activity in accordance with an approval of a
determining authority within the meaning of
Part 5 of that Act if the determining authority
has complied with that Part, or
[24] Section 118A (3) (b1) and (b2)
Insert after section 118A (3) (b):
(b1) was authorised by, and done in accordance with, a
conservation agreement, or
(b2) was authorised by, and done in accordance with, a joint
management agreement entered into under Part 7 of the
Threatened Species Conservation Act 1995, or
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Amendment of other Acts Schedule 2
[25] Section 118B Buying, selling or possessing threatened species or
endangered population
Omit section 118B (1) (but not the penalty). Insert instead:
(1) A person must not buy, sell or have in possession or control
any animal or plant that is of, or is part of, a threatened species
or an endangered population.
[26] Section 118B (4)
Insert ", or a scientific licence under section 132C" before "or a licence
granted under Part 6".
[27] Section 118B (5) (a1) and (a2)
Insert after section 118B (5) (a):
(a1) the act constituting the offence was authorised by, and
done in accordance with, a conservation agreement, or
(a2) the act constituting the offence was authorised by, and
done in accordance with, a joint management
agreement entered into under Part 7 of the Threatened
Species Conservation Act 1995, or
[28] Section 118C Damage critical habitat
Omit section 118C (5) (b) (ii). Insert instead:
(ii) an activity by a determining authority within the
meaning of Part 5 of that Act if the determining
authority has complied with that Part, or
(iii) an activity in accordance with an approval of a
determining authority within the meaning of
Part 5 of that Act if the determining authority
has complied with that Part, or
[29] Section 118C (5) (d) and (e)
Insert at the end of section 118C (5) (c):
, or
(d) was authorised by, and done in accordance with, a
conservation agreement, or
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(e) was authorised by, and done in accordance with, a joint
management agreement entered into under Part 7 of the
Threatened Species Conservation Act 1995.
[30] Section 118D Damage habitat of threatened species, endangered
population or endangered ecological community
Omit "a threatened species, population or ecological community" from
section 118D (1).
Insert instead "a threatened species, an endangered population or an
endangered ecological community".
[31] Section 118D (2) (b) (ii)
Omit the sub-paragraph. Insert instead:
(ii) an activity by a determining authority within the
meaning of Part 5 of that Act if the determining
authority has complied with that Part, or
(iii) an activity in accordance with an approval of a
determining authority within the meaning of Part
5 of that Act if the determining authority has
complied with that Part, or
[32] Section 118D (2) (d) and (e)
Insert at the end of section 118D (2) (c):
, or
(d) was authorised by, and done in accordance with, a
conservation agreement, or
(e) was authorised by, and done in accordance with, a joint
management agreement entered into under Part 7 of the
Threatened Species Conservation Act 1995.
[33] Section 118E Court may order offender to restore habitat
Omit "a threatened species, population or ecological community," from
section 118E (1).
Insert instead "a threatened species, an endangered population or an
endangered ecological community,".
Page 56
Threatened Species Conservation Amendment Bill 2002
Amendment of other Acts Schedule 2
[34] Section 118E (1)
Omit "that critical habitat or habitat of a threatened species, population or
ecological community".
Insert instead "that critical habitat or habitat".
[35] Section 118F
Insert after section 118E:
118F Definitions
In this Part:
animal has the same meaning as in the Threatened Species
Conservation Act 1995.
Note. The definition of animal in the Threatened Species Conservation
Act 1995 may include some types of fish.
plant has the same meaning as in the Threatened Species
Conservation Act 1995.
[36] Part 9, heading
Omit the heading. Insert instead:
Part 9 Licensing in respect of fauna, native plants
and threatened species
[37] Section 120 General licence
Omit section 120 (1) (a) and (a1). Insert instead:
(a) to harm or obtain any protected fauna for any specified
purpose,
(a1) to hold or keep in possession or under control any
protected fauna for any specified purpose,
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Schedule 2 Amendment of other Acts
[38] Section 120 (2B)
Insert after section 120 (2A):
(2B) A general licence is not to be issued to authorise the harming
of protected fauna solely for scientific, educational or
conservation purposes. A licence may be issued under
section 132C for those purposes.
Note. Section 91 of the Threatened Species Conservation Act 1995
further provides that a general licence is not to be issued to authorise a
person to harm any animal that is of, or part of, a threatened species,
population or ecological community except:
(a) for the welfare of an animal, or
(b) if there is a threat to life or property.
[39] Section 131 Licence to pick protected native plants
Insert at the end of section 131:
(2A) A licence is not to be issued under this section to authorise the
picking of native plants solely for scientific, educational or
conservation purposes. A licence may be issued under
section 132C for those purposes.
[40] Part 9, Division 3A
Insert after Division 3:
Division 3A Scientific licences
132C Scientific licences
(1) An authorised officer may issue a licence (in this Act referred
to as a scientific licence) authorising a person to take action,
for scientific, educational or conservation purposes, that is
likely to result in one or more of the following:
(a) harm to any protected fauna, or to an animal that is of,
or is part of, a threatened species, an endangered
population or an endangered ecological community,
(b) the picking of any protected native plant or of any plant
that is of, or is part of, a threatened species, an
endangered population or an endangered ecological
community,
(c) damage to critical habitat,
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Amendment of other Acts Schedule 2
(d) damage to a habitat of a threatened species, an
endangered population or an endangered ecological
community.
(2) A scientific licence does not, except in so far as the terms of the
licence otherwise expressly provide, authorise the harming of
fauna in a national park, historic site, state conservation area,
regional park, karst conservation reserve, nature reserve,
Aboriginal area, wildlife refuge, conservation area, wilderness
area or area subject to a wilderness protection agreement.
(3) A scientific licence may be issued without conditions or
limitations or may be issued subject to specified conditions or
limitations.
(4) In particular:
(a) a scientific licence may but need not specify the animal
or plant that may be harmed or picked under its
authority, and
(b) a scientific licence may but need not be limited to
specified areas.
(5) A scientific licence may authorise any specified persons, or
class of persons, in addition to the person to whom the licence
is issued to do the things authorised by the licence. In such a
case, the specified persons or class of persons are taken to be
holders of the licence for the purposes of this Act.
(6) To avoid doubt, the Director-General is not a determining
authority for the purposes of Part 5 of the Environmental
Planning and Assessment Act 1979 when issuing a scientific
licence.
132D Licence authorises certain actions
Except in so far as any conditions or restrictions attached to a
scientific licence otherwise provide:
(a) a scientific licence that authorises a person to harm any
animal in a national park, historic site, state conservation
area, regional park, karst conservation reserve, nature
reserve or Aboriginal area also authorises that person to
do, in connection with the harming of any such animal,
any act referred to in section 45 (1) or 56 (1), and
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(b) a scientific licence that authorises a person to harm any
fauna in a wildlife refuge, conservation area or area
subject to a wilderness protection agreement also
authorises that person to do, in connection with the
harming of any such fauna, any act referred to in
section 70 (1) or (2), and
(c) a scientific licence that authorises a person to harm any
animal or pick any plant also authorises the person to
keep and have the animal or plant in the person's
possession.
132E Definitions
In this Division:
animal has the same meaning as in the Threatened Species
Conservation Act 1995.
Note. The definition of animal in the Threatened Species Conservation
Act 1995 may include some types of fish.
plant has the same meaning as in the Threatened Species
Conservation Act 1995.
[41] Section 133 Conditions and restrictions attaching to licences and
certificates and variation of licences and certificates
Insert "(whether issued under this Act or under Part 6 of the Threatened
Species Conservation Act 1995)" after "The holder of a licence or
certificate" in section 133 (4).
[42] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Threatened Species Conservation Amendment Act 2002
Page 60
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Amendment of other Acts Schedule 2
[43] Schedule 3, Part 4
Insert as Part 4:
Part 4 Provisions consequent on enactment of
T h r e a tened S p e c i e s Co n s e r v a ti o n
Amendment Act 2002
41 Conservation agreement and joint management agreements
A reference, in an amendment made to Parts 7, 7A, 8 or 8A by
the Threatened Species Conservation Amendment Act 2002, to
a conservation agreement, or a joint management agreement
entered into under Part 7 of the Threatened Species
Conservation Act 1995, does not extend to any agreement
entered into before the commencement of the amendment
concerned.
42 Changes consequent on introduction of scientific licences
The amendments made to Divisions 2 and 3 of Part 9 by the
Threatened Species Conservation Amendment Act 2002 do not
apply in respect of any licence issued before the
commencement of those amendments.
43 Commencement of National Parks and Wildlife Amendment Act
2001
(1) Sections 132C (2) and 132D, as inserted by the Threatened
Species Conservation Amendment Act 2002, do not apply in
respect of state conservation areas or Aboriginal areas until the
commencement of Schedule 1 [26] to the National Parks and
Wildlife Amendment Act 2001.
(2) Until the commencement of Schedule 1 [28] to the National
Parks and Wildlife Amendment Act 2001, the provisions of
sections 132C (2) and 132D (a), as inserted by the Threatened
Species Conservation Amendment Act 2002, are taken to apply
in respect of state recreation areas in the same way as they
apply to the other areas mentioned in those provisions.
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Threatened Species Conservation Amendment Bill 2002
Schedule 2 Amendment of other Acts
(3) Until the commencement of Schedule 1 [33] to the National
Parks and Wildlife Amendment Act 2001, the provisions of
sections 132C (2) and 132D (a), as inserted by the Threatened
Species Conservation Amendment Act 2002, are taken to apply
in respect of state game reserves in the same way as they apply
to the other areas mentioned in those provisions.
(4) Until the commencement of Schedule 1 [44] to the National
Parks and Wildlife Amendment Act 2001, the provisions of
sections 132C (2) and 132D (b), as inserted by the Threatened
Species Conservation Amendment Act 2002, are taken to apply
in respect of wildlife districts in the same way as they apply to
the other areas mentioned in those provisions.
(5) Until the commencement of Schedule 1 [45] to the National
Parks and Wildlife Amendment Act 2001, the provisions of
sections 132C (2) and 132D (b), as inserted by the Threatened
Species Conservation Amendment Act 2002, are taken to apply
in respect of wildlife management areas in the same way as
they apply to the other areas mentioned in those provisions.
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