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New South Wales
Threatened Species Legislation
Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments 2
Schedule 1 Amendment of Threatened Species Conservation Act 1995
No 101 3
Schedule 2 Amendment of Fisheries Management Act 1994 No 38 34
Schedule 3 Amendment of other threatened species legislation 64
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, , 2004
New South Wales
Threatened Species Legislation
Amendment Bill 2004
Act No , 2004
An Act to amend the Threatened Species Conservation Act 1995 and other
threatened species legislation to make provision for critically endangered
species and ecological communities and to make further provision for
conservation of threatened species, threatened species recovery and threat
abatement processes and integration with natural resource management and land
use planning; 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 Legislation Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Threatened Species Legislation Amendment
Act 2004.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by subsection (2).
(2) Schedule 3.1 [1], [8] and [10][17] and 3.2 commence on the date
of assent.
3 Amendments
The Acts and Regulation specified in the Schedules to this Act are
amended as set out in those Schedules.
Page 2
Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
Schedule 1 Amendment of Threatened Species
Conservation Act 1995 No 101
(Section 3)
[1] Section 4 Definitions
Omit the definition of Advisory Council from section 4 (1).
[2] Section 4 (1)
Omit the definition of Director-General. Insert instead:
Department means the Department of Environment and
Conservation.
Director-General means the Director-General of the
Department.
[3] Section 4 (1)
Insert in alphabetical order:
BDAC means the Biological Diversity Advisory Council
established under Part 9A.
catchment action plan or CAP means a catchment action plan
approved under Part 4 of the Catchment Management
Authorities Act 2003.
critically endangered ecological community means an
ecological community specified in Part 2 of Schedule 1A.
critically endangered species means a species specified in
Part 1 of Schedule 1A.
critically endangered species and ecological communities
means species and ecological communities specified in
Schedule 1A and critically endangered species or ecological
community means a species or ecological community
respectively specified in that Schedule.
environmental planning instrument or EPI means an
environmental planning instrument under the Environmental
Planning and Assessment Act 1979.
NPW Act means the National Parks and Wildlife Act 1974.
NRC means the Natural Resources Commission established
under the Natural Resources Commission Act 2003.
Page 3
Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
Priorities Action Statement means a Threatened Species
Priorities Action Statement under Part 5A.
SEAC means the Social and Economic Advisory Council
established under Part 9A.
vulnerable ecological community means an ecological
community specified in Part 2 of Schedule 2.
[4] Section 4 (1), definition of "list"
Insert ", 1A" after "Schedule 1".
[5] Section 4 (1), definition of "threatened ecological community"
Insert ", Part 2 of Schedule 1A" after "Schedule 1".
[6] Section 4 (1), definition of "threatened species"
Omit the definition. Insert instead:
threatened species means a species specified in Part 1 or 4 of
Schedule 1, Part 1 of Schedule 1A or Part 1 of Schedule 2.
[7] Section 4 (1), definition of "threatened species, populations and
ecological communities"
Insert ", 1A" after "Schedules 1".
[8] Section 4 (1), definition of "threatened species, population or
ecological community"
Omit "either of those Schedules". Insert instead "any of those Schedules".
[9] Part 2, Introductory note
Insert after the first dot point relating to Schedule 1:
· in Schedule 1A, of critically endangered species and
ecological communities, and
[10] Part 2, Introductory note
Insert "and vulnerable ecological communities" after "in Schedule 2, of
vulnerable species".
Page 4
Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[11] Part 2, Introductory note
Omit "lists of endangered populations and endangered ecological
communities and threatening processes".
Insert instead "lists of critically endangered species, endangered
populations, endangered and critically endangered ecological
communities and threatening processes".
[12] Part 2, Introductory note
Omit "Division 4 describes the process by which species that are
endangered may be listed provisionally in Schedule 1".
Insert instead "Division 4 describes the process by which species that are
endangered or critically endangered may be listed provisionally in
Schedule 1 or 1A".
[13] Section 6 Lists of endangered and critically endangered species,
populations and ecological communities
Insert after section 6 (4):
(4A) Part 1 of Schedule 1A contains a list of critically endangered
species for the purposes of this Act.
(4B) Part 2 of Schedule 1A contains a list of critically endangered
ecological communities for the purposes of this Act.
[14] Section 6 (5) and (6)
Insert "or critically endangered" after "endangered" wherever occurring.
[15] Section 7
Omit the section. Insert instead:
7 Schedule 2 list of vulnerable species and ecological
communities
(1) Part 1 of Schedule 2 contains a list of vulnerable species for
the purposes of this Act.
(2) Part 2 of Schedule 2 contains a list of vulnerable ecological
communities for the purposes of this Act.
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
(3) 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.
(4) 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.
[16] Section 9 Listing of nationally threatened species and ecological
communities
Insert ", 1A" after "Schedule 1" wherever occurring.
[17] Part 2 Listing of threatened species, populations and ecological
communities and key threatening processes
Omit Division 2 of Part 2. Insert instead:
Division 2 Eligibility for listing
10 Listing of species
(1) A species is eligible to be listed as a species 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.
(2) A species is eligible to be listed as a critically endangered
species if, in the opinion of the Scientific Committee, it is
facing an extremely high risk of extinction in New South
Wales in the immediate future, as determined in accordance
with criteria prescribed by the regulations.
(3) A species is eligible to be listed as an endangered species if,
in the opinion of the Scientific Committee:
(a) it is facing a very high risk of extinction in New South
Wales in the near future, as determined in accordance
with criteria prescribed by the regulations, and
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Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
(b) it is not eligible to be listed as a critically endangered
species.
(4) A species is eligible to be listed as a vulnerable species if, in
the opinion of the Scientific Committee:
(a) it is facing a high risk of extinction in New South Wales
in the medium-term future, as determined in
accordance with criteria prescribed by the regulations,
and
(b) it is not eligible to be listed as an endangered or
critically endangered species.
11 Listing of 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 very high risk of extinction in New South Wales in
the near future, as determined in accordance with criteria
prescribed by the regulations.
(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 or 1A.
12 Listing of ecological communities
(1) An ecological community is eligible to be listed as a critically
endangered ecological community if, in the opinion of the
Scientific Committee, it is facing an extremely high risk of
extinction in New South Wales in the immediate future, as
determined in accordance with criteria prescribed by the
regulations.
(2) An ecological community is eligible to be listed as an
endangered ecological community if, in the opinion of the
Scientific Committee:
(a) it is facing a very high risk of extinction in New South
Wales in the near future, as determined in accordance
with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as a critically endangered
ecological community.
(3) An ecological community is eligible to be listed as a
vulnerable ecological community if, in the opinion of the
Scientific Committee:
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
(a) it is facing a high risk of extinction in New South Wales
in the medium-term future, as determined in
accordance with criteria prescribed by the regulations,
and
(b) it is not eligible to be listed as an endangered or
critically endangered ecological community.
13 Threatening processes eligible for listing as key threatening
processes
(1) A threatening process is eligible to be listed as a key
threatening process if, in the opinion of the Scientific
Committee:
(a) it adversely affects threatened species, populations or
ecological communities, or
(b) it could cause species, populations or ecological
communities that are not threatened to become
threatened.
(2) The regulations may prescribe criteria for the determination
of matters under this section.
14 Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of
section 10, 11, 12 or 13 is not to be made unless the Minister
certifies in writing that:
(a) the criteria are based on scientific principles only, and
(b) any criteria for listing under the Environment
Protection and Biodiversity Conservation Act 1999 of
the Commonwealth were given due consideration
before the regulation was made.
[18] Section 16 Operation of Division
Insert ", 1A" after "Schedule 1" in section 16 (1).
[19] Section 16 (2)
Insert "or critically endangered" after "endangered".
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Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[20] Section 16 (3)
Insert after section 16 (2):
(3) A proposal that involves the alteration of the listing status of
a species or ecological community (by moving the description
of the species or ecological community from one Schedule to
another or from one Part of a Schedule to another Part of the
Schedule) may be dealt with under this Division as a
composite proposal, whereby all aspects of the proposal are
dealt with together.
[21] Section 17 Scientific Committee responsible for lists
Insert ", 1A" after "Schedule 1" in section 17 (1).
[22] Section 17 (2)
Omit the subsection.
[23] Section 18 Who may initiate action for listing
Insert "or the NRC" after "Minister" in section 18 (2).
[24] Section 19 Making nomination for inclusion on, omission from or
amendment of list
Insert ", 1A" after "Schedule 1" in section 19 (1) and (2) wherever
occurring.
[25] Section 19 (6)
Insert after section 19 (5):
(6) The Scientific Committee is to give notice of a nomination to
the Minister and the NRC within 14 days after the nomination
is made.
[26] Section 21 Consideration of nomination by Scientific Committee
Omit section 21 (1). Insert instead:
(1) The Scientific Committee is to determine priorities for its
consideration of nominations every 12 months and in
determining those priorities is to have regard to:
(a) the degree of threat, immediacy of threat, taxonomic
distinctiveness and such other matters as the Scientific
Committee considers relevant, and
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
(b) any advice or recommendations of the Minister or the
NRC concerning those priorities.
(1A) The NRC and the Minister may give advice or make
recommendations to the Scientific Committee concerning
priorities for the consideration of nominations by the
Scientific Committee, and in giving that advice or making
those recommendations the NRC and the Minister may
consider State-wide issues of concern in biodiversity
conservation.
[27] Section 21 (4)
Insert ", the NRC" after "Minister".
[28] Section 21 (5)
Insert ", 1A" after "Schedule 1".
[29] Section 22 Scientific Committee's preliminary determination
Insert after section 22 (6):
(7) The reasons for a preliminary determination are to include
reference to such of the criteria prescribed by the regulations
under sections 1013 as may be relevant to the determination.
[30] Section 23 Scientific Committee's final determination
Omit "Schedule 1, 2 or 3, and must give reasons for the determination"
from section 23 (1).
Insert instead "Schedule 1, 1A, 2 or 3 and must give reasons for its
decision".
[31] Section 23 (1A)
Insert after section 23 (1):
(1A) The reasons for a determination are to include reference to
such of the criteria prescribed by the regulations under
sections 1013 as may be relevant to the determination.
[32] Section 23 (2)
Insert "final" before "determination" where firstly occurring.
Page 10
Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[33] Section 23 (3)(6)
Insert after section 23 (2):
(3) Before making a final determination the Scientific Committee
must give the Minister notice in writing of the proposed final
determination. The Minister then has 2 months to decide
whether to refer the proposed final determination back to the
Scientific Committee for further consideration under section
23A.
(4) The Scientific Committee is not to proceed to make the
proposed final determination unless:
(a) the Minister has notified the Scientific Committee that
the Minister has decided not to refer the proposed
determination back to the Scientific Committee for
further consideration, or
(b) the Minister has not referred the proposed final
determination back to the Scientific Committee for
further consideration under section 23A within 2
months after the Minister was given notice of the
proposed final determination, or
(c) if the Minister has referred the proposed final
determination back to the Scientific Committee for
further consideration under section 23A within that 2
months, the Scientific Committee has decided to
proceed with the final determination following that
further consideration.
(5) The Minister may at the request of the Scientific Committee
extend and further extend the period of 6 months under
subsection (2), to a maximum period of 2 years.
(6) Failure to make a final determination within the period
required by this section or to give notice to the Minister of a
proposed final determination within the period required by
this section does not affect the validity of the determination.
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
[34] Section 23A
Insert after section 23:
23A Minister's response to proposed final determination
(1) Within 2 months after receiving notice from the Scientific
Committee of a proposed final determination, the Minister
may:
(a) notify the Scientific Committee that the Minister has
decided not to refer the proposed determination back to
the Scientific Committee for further consideration, or
(b) refer the proposed final determination back to the
Scientific Committee for further consideration.
(2) The Minister may only refer a matter back to the Scientific
Committee for reasons of a scientific nature provided to the
Scientific Committee. In the case of a nomination, the
Scientific Committee is to notify the person who made the
nomination that the matter has been referred back to the
Scientific Committee and of the Minister's reasons for doing
so.
(3) If a proposed final determination is referred back to the
Scientific Committee for further consideration:
(a) the Scientific Committee may, after further considering
it, decide to proceed with the final determination, to
change the final determination or not to proceed with
the final determination, and
(b) the Scientific Committee is to make that decision
within 3 months, and
(c) the Minister cannot refer the matter back to the
Scientific Committee again after it has made that
decision.
(4) Failure to make a decision within the period required by this
section does not affect the validity of the decision.
[35] Section 24 Publication of final determination
Insert ", the NRC" after "Minister" in section 24 (1) (b).
Page 12
Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[36] Section 24 (2A)
Insert after section 24 (2):
(2A) The reasons for a final determination are to include reference
to such of the criteria prescribed by the regulations under
sections 1013 as may be relevant to the determination.
[37] Section 24 (3) (a)
Omit "National Parks and Wildlife Service". Insert instead "Department".
[38] Section 24 (4)
Insert after section 24 (3):
(4) The validity of a final determination cannot be questioned in
any legal proceedings except those commenced in a court by
any person within 6 months of the date of publication in the
Gazette of notice of the making of the final determination.
[39] Section 25 Revision of Schedule on publication of final
determination
Insert ", 1A" after "Schedule 1" wherever occurring.
[40] Section 25A
Insert after section 25:
25A Lists to be kept under review
(1) The Scientific Committee must keep the lists in Schedules 1,
1A, 2 and 3 under review and must, at least every 2 years,
determine whether any changes to the lists are necessary.
(2) The NRC or the Minister may give advice or make
recommendations to the Scientific Committee concerning
priorities for the review of the lists in Schedules 1, 1A, 2 and
3 under this section, and the Scientific Committee is to have
regard to any such advice or recommendations.
(3) The NRC or the Minister may give directions to the Scientific
Committee requiring the Scientific Committee to undertake
investigations for the purpose of identifying species,
populations and communities that are potentially threatened
species, populations and communities.
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
[41] Part 2, Division 4, heading
Insert "or critically endangered" after "endangered" in the heading to
Division 4 of Part 2.
[42] Sections 2628, 30 and 34
Insert "or 1A" after "Schedule 1" wherever occurring.
[43] Section 26, note, and sections 27 and 28
Insert "or critically endangered" after "endangered" wherever occurring.
[44] Section 36 Termination of provisional listing
Omit "Schedule 1 ceases". Insert instead "Schedule 1 or 1A ceases".
[45] Section 36
Omit "Schedule 1 or 2" wherever occurring.
Insert instead "Schedule 1, 1A or 2".
[46] Section 36A Minor amendments to Schedules
Omit "Schedule 1, 2 or 3" wherever occurring.
Insert instead "Schedule 1, 1A, 2 or 3".
[47] Section 36A (2) (b)
Omit "Part 1 of Schedule 1". Insert instead "Part 1 of Schedule 1 or 1A".
[48] Section 36B Publication of determination
Omit section 36B (1) (b) and (c).
[49] Section 36B (4)
Insert ", 1A" after "Schedule 1".
[50] Sections 36C Revision of Schedule on publication of
determination
Insert ", 1A" after "Schedule 1".
Page 14
Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[51] Part 3, heading
Omit the heading. Insert instead:
Part 3 Critical habitat of endangered species,
populations and ecological communities
and critically endangered species and
ecological communities
[52] Part 3, Introductory note
Omit "endangered species, populations and ecological communities (that
is, those species, populations and ecological communities listed for the
time being in Schedule 1)".
Insert instead "endangered species, populations and ecological
communities, or critically endangered species and ecological
communities (that is, those species, populations and ecological
communities listed for the time being in Schedule 1 or 1A)".
[53] Part 3, Introductory note
Omit "of endangered populations and ecological communities".
[54] Sections 37 (1), 40 (1), 41 (1), 43 (a) and 47 (3)
Insert "or critically endangered species or ecological community" after
"endangered species, population or ecological community" wherever
occurring.
[55] Section 38 Director-General responsible for identifying critical
habitat
Insert "or critically endangered species or ecological community" after
"ecological community".
[56] Part 4 Recovery plans for threatened species, populations and
ecological communities
Insert ", for critically endangered species and ecological communities,"
before "and for vulnerable species" in the Introductory note to Part 4.
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
[57] Section 56 Director-General to prepare recovery plans
Omit "is required to prepare" from section 56 (1).
Insert instead "may prepare".
[58] Section 56 (1)
Insert "and each critically endangered species and ecological community"
after "and ecological community" in section 56 (1).
[59] Section 56 (1)
Omit ", as soon as practicable after it is listed in Schedule 1,".
[60] Section 56 (2)
Omit "must". Insert instead "may".
[61] Section 56 (4)
Insert "and may be made for part of a range of a species, population or
ecological community" after "community".
[62] Section 56 (5)
Omit the subsection (including the note to the subsection).
[63] Section 58
Omit the section. Insert instead:
58 Priorities for recovery plans
Priorities in the preparation of recovery plans are to be in
accordance with the priorities for recovery established by the
relevant Priorities Action Statement.
[64] Section 74 Director-General may prepare threat abatement plans
Omit section 74 (3) and (4).
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Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[65] Section 76
Omit the section. Insert instead:
76 Priorities for threat abatement plans
Priorities in the preparation of threat abatement plans are to be
in accordance with the priorities for threat abatement
established by the relevant Priorities Action Statement.
[66] Part 5A
Insert after Part 5:
Part 5A Threatened Species Priorities Action
Statement
90A What the Statement provides for
A Threatened Species Priorities Action Statement (also called
a Priorities Action Statement) is a statement that:
(a) sets out the strategies (recovery and threat abatement
strategies) to be adopted for promoting the recovery of
each threatened species, population and ecological
community to a position of viability in nature and for
managing each key threatening process as provided by
section 74 (1), and
(b) establishes relative priorities for the implementation of
recovery and threat abatement strategies, and
(c) establishes performance indicators to facilitate
reporting on achievements in implementing recovery
and threat abatement strategies and their effectiveness,
and
(d) contains a status report on each threatened species,
where information is available, and
(e) sets out clear timetables for recovery and threat
abatement planning and achievement.
90B Director-General to prepare and adopt Priorities Action
Statement
(1) The Director-General is to prepare and adopt a Priorities
Action Statement for the purposes of this Act.
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Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
(2) The Priorities Action Statement must be completed as soon as
practicable and no later than 12 months after the date of assent
to the Threatened Species Legislation Amendment Act 2004.
(3) The Director-General is to review the Priorities Action
Statement every 3 years and may make changes to the
Priorities Action Statement pursuant to any such review by
adopting amendments to the Statement.
(4) In preparing or reviewing a Priorities Action Statement, the
Director-General is to seek advice from the NRC, the
Scientific Committee, BDAC, SEAC and such other State
government agencies as the Director-General considers
appropriate.
90C Publication of draft statement or amendments
(1) Before adopting a Priorities Action Statement or any
amendment to the statement, the Director-General must first
prepare a draft of the statement or amendment and must then:
(a) publish notice of the preparation of the draft statement
or amendment in a newspaper circulating generally
throughout the State, and
(b) publish notice of the preparation of the draft statement
or amendment on the website of the Department.
(2) The notice must:
(a) state that the draft statement or amendment has been
prepared, and
(b) specify the address of the place at which copies of the
draft statement or amendment can be inspected, and
(c) invite persons to make written submissions to the
Director-General about the draft statement or
amendment, and
(d) specify the address of the place to which submissions
about the draft statement or amendment may be
forwarded and the date by which submissions must be
made (being a date that is not less than 30 days after the
date of publication of the notice under subsection (1)
(a)).
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Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
90D Consideration of submissions by Director-General
(1) The Director-General must consider all written submissions
received by the Director-General on or before the date
specified in the notice.
(2) The Director-General may alter the draft statement or
amendment to take account of those submissions.
(3) The Director-General must adopt the Priorities Action
Statement or amendment (with or without alterations) within
4 months after the end of the period allowed for the making of
submissions about the draft statement or amendment.
90E Review to include report on achievements
As part of each review of the Priorities Action Statement, the
Director-General is to include in the Priorities Action
Statement a report on achievements in implementing the
strategies established by the Priorities Action Statement
during the period to which the review applies.
[67] Section 113A
Omit the section. Insert instead:
113A Regulations
(1) The regulations may provide that development or an activity
of a specified type constitutes, or does not constitute,
development that is likely to significantly affect threatened
species, populations or ecological communities, or their
habitats.
(2) Any such regulations have effect (despite the provisions of
this Act or any other Act) for the purposes of the operation of:
(a) Part 6 (Licensing) of this Act, and
(b) Parts 4 and 5 of the Environmental Planning and
Assessment Act 1979 (including the operation of those
Parts as applying under any other Act).
Note. Exceptions for the carrying out of routine agricultural management
activities are provided for in section 118G of the National Parks and
Wildlife Act 1974.
(3) A regulation that provides that development or an activity of
a specified type does not constitute development that is likely
to significantly affect threatened species, populations or
Page 19
Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
ecological communities, or their habitats, is not to be made
unless the Minister has certified in writing that the
development or activity is of minimal environmental impact
on threatened species, populations and ecological
communities, and their habitats.
[68] Section 114 Director-General may make stop work order
Insert after section 114 (4) (a):
(a1) clearing of native vegetation as authorised by a property
vegetation plan approved under the Native Vegetation
Act 2003, being clearing that had the benefit of
biodiversity certification of the native vegetation
reform package under Division 4 of Part 7 when the
plan was approved, or
[69] Part 7, Divisions 4 and 5
Insert after Division 3 of Part 7:
Division 4 Biodiversity certification of native vegetation
reform package
126B Native vegetation reform package
For the purposes of this Division, the native vegetation
reform package is the package of reforms comprising the
following:
(a) the Native Vegetation Act 2003 and the regulations
under that Act,
(b) State-wide standards and targets for natural resource
management issues recommended under the Natural
Resources Commission Act 2003 and adopted by the
Government,
(c) catchment action plans under the Catchment
Management Authorities Act 2003,
(d) protocols and guidelines adopted or made under the
regulations under the Native Vegetation Act 2003, the
Catchment Management Authorities Act 2003 and the
Natural Resources Commission Act 2003.
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Threatened Species Legislation Amendment Bill 2004
Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
126C Biodiversity certification of native vegetation reform package
(1) The Minister may by order published in the Gazette confer
biodiversity certification on the native vegetation reform
package for the purposes of this Act.
(2) The Minister may confer biodiversity certification even if the
native vegetation reform package does not comprise all the
elements of the package.
(3) The Minister may, by order published in the Gazette, suspend
biodiversity certification of the native vegetation reform
package if the composition of the package changes after its
certification (for instance by any amendment of the Native
Vegetation Act 2003 or regulations under that Act, or by the
approval or amendment of a State-wide standard or target or
of a catchment action plan). The Minister may by order
published in the Gazette lift any suspension under this
subsection.
(4) The Minister may, in an order conferring biodiversity
certification or in another order published in the Gazette,
exclude from the certification of the native vegetation reform
package any specified class of activity.
(5) In deciding on any action under this section, the Minister is to
have regard to the likely impact of the native vegetation
reform package (or any relevant aspect of its operation) on the
achievement of the objects of this Act.
126D Effect of biodiversity certification
While biodiversity certification of the native vegetation
reform package is in force, any activity on land within the area
of operations of each catchment management authority has
the benefit of that biodiversity certification (except any
activity excluded from certification under section 126C (4)).
Note. Biodiversity certification has the following effects:
(a) the clearing of native vegetation as authorised by a property
vegetation plan that is approved while the clearing has the benefit
of biodiversity certification is a defence to a prosecution for
certain offences under Part 8A of the NPW Act, and
(b) development consent to clearing of native vegetation that has the
benefit of biodiversity certification does not require the
preparation of a species impact statement or consultation
between Ministers. (See section 14 (4) of the Native Vegetation
Act 2003.)
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126E Suspension of certification in connection with implementation
of package
(1) The Minister may by order published in the Gazette suspend
biodiversity certification of the native vegetation reform
package in its application to a particular catchment
management authority if the Minister is of the opinion that the
catchment management authority:
(a) has failed to properly exercise its functions under the
native vegetation reform package, or
(b) has otherwise failed to exercise its functions in a
manner that promotes the conservation of threatened
species, populations and ecological communities.
(2) During the suspension of biodiversity certification of the
native vegetation reform package in its application to a
particular catchment management authority, land within the
area of operations of the catchment management authority
does not have the benefit of the biodiversity certification of
the native vegetation reform package.
(3) The Minister is only entitled to form an opinion for the
purposes of this section:
(a) based on the outcomes of any audit undertaken by the
NRC, or
(b) based on the results of an investigation conducted by
the Director-General, or
(c) in such other circumstances as may be prescribed by the
regulations.
126F Notification of certification, variation, suspension or
revocation
(1) Notice of the grant of biodiversity certification under this
Division or of any suspension of that certification under this
Division is to be given within 14 days:
(a) to the Director-General of the Department of
Infrastructure, Planning and Natural Resources, and
(b) on the website of the Department of Environment and
Conservation.
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(2) The Minister is to keep a register containing copies of each
notice of the grant of biodiversity certification under this
Division and of any suspension or revocation of that
certification.
(3) The register is to be open for public inspection, without
charge, during ordinary business hours, and copies of or
extracts from the register are to be made available to the
public on request, on payment of the fee fixed by the Minister.
Division 5 Biodiversity certification of environmental
planning instruments
126G Biodiversity certification
(1) The Minister may by order published in the Gazette confer
biodiversity certification on an EPI if satisfied that the EPI, in
addition to any other relevant measures to be taken, will lead
to the overall improvement or maintenance of biodiversity
values. Biodiversity values include threatened species,
populations and ecological communities, and their habitats.
(2) In deciding whether to confer biodiversity certification on an
EPI the Minister must also have regard to the following
considerations:
(a) the likely social and economic consequences of
implementation of the EPI,
(b) the most efficient and effective use of available
resources for the conservation of threatened species,
populations and ecological communities,
(c) the principles of ecologically sustainable development,
(d) conservation outcomes resulting from any reservation
or proposed reservation of land under Part 4 of the
NPW Act or the entering into of a conservation
agreement relating to the land under that Act, or
resulting from any other action to secure the protection
of land for conservation purposes,
(e) conservation outcomes resulting from the operation
outside the area of operation of the EPI of strategies,
plans, agreements and other instruments (whether or
not they are EPIs).
(3) In deciding any matter under this section the Minister is to
have regard to the objects of this Act.
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(4) An EPI cannot be biodiversity certified unless:
(a) notice is given of proposed biodiversity certification of
the EPI in the course of the public exhibition of a draft
of the EPI under section 66 of the Environmental
Planning and Assessment Act 1979 or by public
exhibition following a procedure that substantially
accords with the procedure for public exhibition
required by that section, and
(b) copies of submissions made in response to an invitation
for submissions in the course of that public exhibition
have been provided to the Minister.
(5) The Minister may issue guidelines for the purpose of assisting
in the preparation of EPIs for biodiversity certification.
126H Certification can be conditional
(1) Biodiversity certification of an EPI can be subject to
conditions, including conditions that limit the certification to
specified threatened species, populations and communities or
to a specified part of the land to which the EPI applies.
(2) Unless limited by the conditions of certification, biodiversity
certification of an EPI applies to the whole of the land to
which the EPI applies, and to all threatened species,
populations and ecological communities.
126I Effect of biodiversity certification
(1) Any development for which development consent is required
under the provisions of a biodiversity certified EPI is, for the
purposes of Part 4 of the Environmental Planning and
Assessment Act 1979 taken to be development that is not
likely to significantly affect any threatened species,
population or ecological community, or its habitat.
(2) An activity to which Part 5 of the Environmental Planning
and Assessment Act 1979 applies that a biodiversity certified
EPI provides can be carried out without the need for
development consent is, for the purposes of that Part, taken to
be an activity that is not likely to significantly affect any
threatened species, population or ecological community, or its
habitat.
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(3) This section applies only to development or an activity on
land to which the certification of the EPI applies and only to
threatened species, populations or ecological communities
(and their habitat) to which the certification applies.
126J Period of certification and extension
(1) Biodiversity certification of an EPI remains in force for such
period as the Minister determines and specifies in the
certification. If no period is specified, biodiversity
certification remains in force for 10 years.
(2) Prior to the expiration of biodiversity certification of an EPI,
the Minister may by order published in the Gazette extend by
a period of up to 10 years the period for which that
certification remains in force, but only if the Minister has
reviewed the EPI to take account of any new listing of a
species, population or ecological community or the discovery
of a species, population or ecological community not
previously known in an area.
(3) The Minister must not extend the period of biodiversity
certification of an EPI unless, prior to granting the extension,
the Minister:
(a) by notice published in a newspaper circulating
generally throughout the State, invites persons to make
written submissions to the Minister on the proposed
extension, and
(b) considers any written submissions received before the
closing date specified in the notice for the making of
submissions (being a date that is not less than 30 days
after the date the notice is first published under this
subsection).
(4) This section does not prevent further biodiversity certification
of an EPI under this Division.
126K Reassessment of biodiversity certification
(1) The Minister is to reassess the grant of biodiversity
certification in respect of an EPI following any review of the
EPI under the Environmental Planning and Assessment Act
1979, or any rezoning of land to which the EPI applies, to
determine whether biodiversity certification should be
maintained or modified.
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(2) If a local council undertakes a review of a biodiversity
certified EPI that applies to land in its area, the council is to
notify the Minister of the commencement of that review, and
the outcome of that review, as soon as practicable.
126L Suspension and revocation of certification
The Minister may by order published in the Gazette suspend
or revoke the certification of an EPI if the Minister is of the
opinion that:
(a) the EPI fails (or will, as a result of any proposed
amendment of the EPI, fail) to make appropriate
provision for the conservation of threatened species,
populations and ecological communities, or
(b) the consent authority under the EPI has failed to
adequately comply with a direction by the Minister to
review the EPI in response to any new listing of a
species, population or ecological community or the
discovery of a species, population or ecological
community not previously known in an area.
126M Notification of certification, suspension or revocation
(1) Notice of the grant of biodiversity certification under this
Division or of the extension, suspension or revocation of that
certification is to be given within 21 days:
(a) to the Director-General of the Department of
Infrastructure, Planning and Natural Resources, and
(b) on the website of the Department of Environment and
Conservation, and
(c) to each local council that is the council of an area of
which land to which the EPI applies forms part.
(2) The Minister is to keep a register containing copies of each
notice of the grant of biodiversity certification under this
Division and of any extension, suspension or revocation of
that certification.
(3) The register is to be open for public inspection, without
charge, during ordinary business hours, and copies of or
extracts from the register are to be made available to the
public on request, on payment of the fee fixed by the Minister.
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126N Concurrence can be conditional on voluntary conservation
action
(1) The Director-General may grant concurrence under section
79B or 112C of the Environmental Planning and Assessment
Act 1979 conditional on the taking of specified action
(voluntary action, as provided by subsection (2)) that the
Director-General considers will significantly benefit
threatened species conservation, but only if the Director-
General is satisfied that the person who proposes to carry out
the development or activity to which the concurrence relates
has agreed to take the voluntary action and agrees to the
imposition of the condition.
(2) The voluntary action that can be required by a condition
imposed under this section is any one or more of the
following:
(a) the reservation of land under Part 4 of the NPW Act or
the entering into of a conservation agreement relating to
the land under that Act,
(b) action to secure the protection of land for conservation
purposes by a method that the Director-General
considers satisfactory,
(c) action to restore threatened species habitat on land
referred to in paragraph (a) or (b),
(d) the contribution of money for a purpose referred to in
paragraph (a)(c).
(3) In determining whether to confer biodiversity certification on
an EPI, the Minister is entitled to have regard to the
conservation benefits that will result from the taking of action
in accordance with a condition proposed to be imposed under
this section (as if those benefits would result from the
implementation of the EPI).
(4) When such a condition is imposed as a condition of
concurrence in respect of development, the consent authority
for the development must also impose the condition on its
consent for the development.
(5) The annual report of the Department is to include an
assessment of how any voluntary action taken pursuant to a
condition imposed under this section has benefited or is likely
to benefit the adversely affected threatened species, including
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details of how any land or money contributed pursuant to such
a condition has benefited or is likely to benefit threatened
species.
126O Director-General may accredit persons to prepare threatened
species assessments and surveys
(1) The Director-General is to institute arrangements for the
accreditation of suitably qualified and experienced persons to
undertake and prepare surveys and assessments for use in
connection with:
(a) biodiversity certification of EPIs under this Division, or
(b) any assessment of the matters referred to in section 5A
(Significant effect on threatened species, populations or
ecological communities, or their habitats) of the
Environmental Planning and Assessment Act 1979.
(2) An applicant for accreditation must furnish the Director-
General with such information as the Director-General
requires to effectively determine the application and the
application must be accompanied by the fee fixed by the
Director-General for the consideration of the application.
(3) An accreditation is to be for the period (not exceeding 3 years)
specified by the Director-General in the instrument of
accreditation, and the accreditation (or any renewal of it) may
be given subject to the conditions and restrictions (if any)
specified in the instrument of accreditation.
(4) Without limiting subsection (3), an accreditation is to include
conditions that require surveys and assessments to be
undertaken and prepared in accordance with standards
approved from time to time by the Director-General by order
published in the Gazette.
(5) The Director-General may vary conditions or restrictions (if
any) attaching to an accreditation and may suspend or cancel
an accreditation.
[70] Section 128 Functions of Scientific Committee
Insert "or critically endangered" after "endangered" in section 128 (2) (c).
[71] Section 128 (2) (g)
Insert "and the NRC" after "Minister" where firstly occurring.
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Amendment of Threatened Species Conservation Act 1995 No 101 Schedule 1
[72] Sections 137139
Omit the sections.
[73] Part 9A
Insert after Part 9:
Part 9A Advisory Councils
141A References to Minister and Director-General
(1) In this Part, a reference to the Minister includes a reference to
the Minister administering the Fisheries Management Act
1994 and a reference to the Director-General includes a
reference to the Director-General of the Department of
Primary Industries.
(2) If a provision of this Part (or applied by this Part) requires or
authorises the Minister or the Director-General to take any
action or decide any matter, the provision is taken only to
require or authorise:
(a) the Minister administering this Act and the Minister
administering the Fisheries Management Act 1994, or
(b) the Director-General and the Director-General of the
Department of Primary Industries,
to take the action jointly or decide the matter jointly.
(3) However, any such action may be taken separately, or any
such decision may be made separately, in respect of any
matter if those Ministers or officers so agree.
141B Biological Diversity Advisory Council
(1) There is to be a Biological Diversity Advisory Council
(BDAC).
(2) The Minister is to determine by instrument in writing the
membership and the terms and conditions of appointment of
members of BDAC.
(3) The members of BDAC are to have expertise in one or more
of the following areas:
(a) biological diversity,
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(b) biological science,
(c) environmental science.
(4) BDAC may advise the Minister, the Director-General and the
NRC on:
(a) likely impacts on biological diversity of actions to be
taken under the Act following the listing of threatened
species, populations or ecological communities or key
threatening processes, and
(b) such other related matters as may be referred to BDAC
by the Minister, the Director-General or the NRC.
141C Social and Economic Advisory Council
(1) There is to be a Social and Economic Advisory Council
(SEAC).
(2) The Minister is to determine by instrument in writing the
membership and the terms and conditions of appointment of
members of SEAC.
(3) The members of SEAC are to have expertise in one or more
of the following areas:
(a) natural resource management,
(b) economics,
(c) social impact assessment,
(d) industry or agriculture sectors.
(4) SEAC may advise the Minister, the Director-General and the
NRC on:
(a) likely social and economic impacts of actions to be
taken under this Act following the listing of threatened
species, populations or ecological communities or key
threatening processes, and
(b) such other related matters as may be referred to SEAC
by the Minister, the Director-General or the NRC.
141D Provisions relating to BDAC, SEAC and their members
(1) The provisions of sections 130 (Provisions relating to
members of Scientific Committee), 131 (Chairperson and
Deputy Chairperson), 132 (Disclosure of pecuniary interests),
133 (Procedure of Scientific Committee) and 134
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(Transaction of business outside meeting or by telephone or
other means) apply to and in respect of BDAC and SEAC and
the members of BDAC and SEAC as if references in those
sections to the Scientific Committee were references to
BDAC and SEAC.
(2) Despite subsection (1), the quorum for a meeting of BDAC or
SEAC is a majority of the members of BDAC or SEAC.
[74] Section 142A
Insert after section 142:
142A Delegation
The Minister or the Director-General may delegate to any
member of staff of the Department any of the Minister's or
Director-General's functions under this Act other than this
power of delegation.
[75] Section 146 Decision not to disclose location of critical habitat
Insert "or critically endangered" after "endangered" in section
146 (2) (a) (i).
[76] Section 157
Omit the section. Insert instead:
157 Review of Act
(1) The Minister is to review this Act to determine whether the
policy objectives of the Act are being fulfilled and whether
the terms of the Act, and any environmental planning
instruments granted biodiversity certification under Part 7,
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the
period of 5 years from the date of assent to the Threatened
Species Legislation Amendment Act 2004.
(3) The Minister is to make arrangements for public consultation
with respect to the review.
(4) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after the end of the
period of 5 years.
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Threatened Species Legislation Amendment Bill 2004
Schedule 1 Amendment of Threatened Species Conservation Act 1995 No 101
[77] Schedule 1A
Insert after Schedule 1:
Schedule 1ACritically endangered species and
ecological communities
(Section 6)
Part 1 Critically endangered species
Part 2 Critically endangered ecological
communities
[78] Schedule 2 Vulnerable species and ecological communities
Omit "Sections 7 and 7A". Insert instead "Section 7".
[79] Schedule 2, Part 2
Insert at the end of the Schedule:
Part 2 Vulnerable ecological communities
[80] Schedule 7 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Threatened Species Legislation Amendment Act 2004, to the
extent that it amends this Act
[81] Schedule 7, Part 5
Insert after Part 4:
Part 5 Provisions consequent on Threatened
Species Legislation Amendment
Act 2004
11 Definition
In this Part:
2004 amending Act means the Threatened Species
Legislation Amendment Act 2004.
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12 Referral of proposed final determinations to Minister
The amendments to section 23, and new section 23A, as
enacted by the 2004 amending Act extend to a matter pending
under section 23 and not finally determined before the
commencement of this clause.
13 Threatened Species Priorities Action Statements
The Director-General may exercise any function of the
Director-General under Part 5A prior to the commencement
of that Part, for the purpose of facilitating the adoption of a
Threatened Species Priorities Action Statement on the
commencement of that Part.
14 Biological Diversity Advisory Council
The members of the Biological Diversity Advisory Council
holding office immediately before the repeal of sections
137139 cease to hold office as members of the Advisory
Council on that repeal (but are eligible, if otherwise qualified,
for re-appointment as members of BDAC.
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Threatened Species Legislation Amendment Bill 2004
Schedule 2 Amendment of Fisheries Management Act 1994 No 38
Schedule 2 Amendment of Fisheries Management Act
1994 No 38
(Section 3)
[1] Section 220B Definitions
Insert in alphabetical order in section 220B (1):
BDAC means the Biological Diversity Advisory Council
established under the Threatened Species Conservation Act
1995.
catchment action plan or CAP means a catchment action plan
approved under Part 4 of the Catchment Management
Authorities Act 2003.
critically endangered ecological community means an
ecological community specified in Part 2 of Schedule 4A.
critically endangered species means a species specified in
Part 1 of Schedule 4A.
critically endangered species and ecological communities
means species and ecological communities specified in
Schedule 4A and critically endangered species or ecological
community means a species or ecological community
respectively specified in that Schedule.
Department means the Department of Primary Industries.
environmental planning instrument or EPI means an
environmental planning instrument under the Environmental
Planning and Assessment Act 1979.
NPW Act means the National Parks and Wildlife Act 1974.
NRC means the Natural Resources Commission established
under the Natural Resources Commission Act 2003.
Priorities Action Statement means a Threatened Species
Priorities Action Statement under Division 5A.
SEAC means the Social and Economic Advisory Council
established under the Threatened Species Conservation
Act 1995.
threatened ecological community means an ecological
community specified in Part 3 of Schedule 4, Part 2 of
Schedule 4A or Part 2 of Schedule 5.
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Threatened Species Legislation Amendment Bill 2004
Amendment of Fisheries Management Act 1994 No 38 Schedule 2
vulnerable ecological community means an ecological
community specified in Part 2 of Schedule 5.
[2] Section 220B (1), definition of "threatened species"
Omit the definition. Insert instead:
threatened species means a species specified in Part 1
(Endangered species) or 4 (Species presumed extinct) of
Schedule 4, Part 1 (Critically endangered species) of
Schedule 4A or Part 1 (Vulnerable species) of Schedule 5.
[3] Section 220B (1), definition of "threatened species, populations
and ecological communities"
Insert ", 4A" after "Schedules 4".
[4] Section 220B (1), definition of "threatened species, populations
and ecological communities"
Omit "either of those Schedules". Insert instead "any of those Schedules".
[5] Section 220B (1), definition of "vulnerable species"
Insert "Part 1 of" before "Schedule 5".
[6] Section 220C Lists
Omit section 220C (5). Insert instead:
(4A) Critically endangered species
Part 1 of Schedule 4A contains a list of critically endangered
species for the purposes of this Part.
(4B) Critically endangered ecological communities
Part 2 of Schedule 4A contains a list of critically endangered
ecological communities for the purposes of this Part.
(5) Vulnerable species
Part 1 of Schedule 5 contains a list of vulnerable species for
the purposes of this Part.
(5A) Vulnerable ecological communities
Part 2 of Schedule 5 contains a list of vulnerable ecological
communities for the purposes of this Part.
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Threatened Species Legislation Amendment Bill 2004
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[7] Section 220D Amendment of lists
Omit "Minister" wherever occurring in section 220D (1) and (2).
Insert instead "Fisheries Scientific Committee".
[8] Section 220D (1) and (2)
Insert "4A," after "Schedule 4," wherever occurring.
[9] Section 220D (3)
Omit the subsection. Insert instead:
(3) A new species, population, ecological community or
threatening process may not be listed, nor any such listing
changed or omitted, unless the requirements of Subdivision 2
have been complied with.
[10] Section 220E
Omit the section. Insert instead:
220E Identification of nationally threatened species and ecological
communities
(1) A species or ecological community listed in Schedule 4, 4A
or 5 that is also a listed threatened species or listed threatened
ecological community under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth is
shown in Schedule 4, 4A or 5 to this Act marked with an
asterisk to show its national status.
(2) 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 listed threatened
ecological community under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth,
the Fisheries Scientific Committee is to consider whether, in
accordance with this Division, the species or ecological
community should be listed in Schedule 4, 4A or 5 to this Act.
(3) If a species or ecological community ceases to be a listed
threatened species or a listed threatened ecological
community under the Environment Protection and
Biodiversity Conservation Act 1999 of the Commonwealth:
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Threatened Species Legislation Amendment Bill 2004
Amendment of Fisheries Management Act 1994 No 38 Schedule 2
(a) Schedule 4, 4A or 5 to this Act may be amended to omit
the asterisk showing its national status, and
(b) the Fisheries Scientific Committee is to consider, in
accordance with this Division, whether the species or
ecological community should be omitted from
Schedule 4, 4A or 5 to this Act.
[11] Sections 220F220FC
Omit section 220F. Insert instead:
220F Eligibility for listing of species
(1) A species is eligible to be listed as a species presumed extinct
at a particular time if, in the opinion of the Fisheries 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 Fisheries
Scientific Committee, to its life cycle and form.
(2) A species is eligible to be listed as a critically endangered
species if, in the opinion of the Fisheries Scientific
Committee, it is facing an extremely high risk of extinction in
New South Wales in the immediate future, as determined in
accordance with criteria prescribed by the regulations.
(3) A species is eligible to be listed as an endangered species if,
in the opinion of the Fisheries Scientific Committee:
(a) it is facing a very high risk of extinction in New South
Wales in the near future, as determined in accordance
with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as a critically endangered
species.
(4) A species is eligible to be listed as a vulnerable species if, in
the opinion of the Fisheries Scientific Committee:
(a) it is facing a high risk of extinction in New South Wales
in the medium-term future, as determined in
accordance with criteria prescribed by the regulations,
and
(b) it is not eligible to be listed as an endangered or
critically endangered species.
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Schedule 2 Amendment of Fisheries Management Act 1994 No 38
220FA Listing of populations
(1) A population is eligible to be listed as an endangered
population if, in the opinion of the Fisheries Scientific
Committee, it is facing a very high risk of extinction in New
South Wales in the near future, as determined in accordance
with criteria prescribed by the regulations.
(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 4 or 4A.
220FB Listing of ecological communities
(1) An ecological community is eligible to be listed as a critically
endangered ecological community if, in the opinion of the
Fisheries Scientific Committee, it is facing an extremely high
risk of extinction in New South Wales in the immediate
future, as determined in accordance with criteria prescribed
by the regulations.
(2) An ecological community is eligible to be listed as an
endangered ecological community if, in the opinion of the
Fisheries Scientific Committee:
(a) it is facing a very high risk of extinction in New South
Wales in the near future, as determined in accordance
with criteria prescribed by the regulations, and
(b) it is not eligible to be listed as a critically endangered
ecological community.
(3) An ecological community is eligible to be listed as a
vulnerable ecological community if, in the opinion of the
Fisheries Scientific Committee:
(a) it is facing a high risk of extinction in New South Wales
in the medium-term future, as determined in
accordance with criteria prescribed by the regulations,
and
(b) it is not eligible to be listed as an endangered or
critically endangered ecological community.
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Threatened Species Legislation Amendment Bill 2004
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220FC Threatening processes eligible for listing as key threatening
processes
(1) A threatening process is eligible to be listed as a key
threatening process if, in the opinion of the Fisheries
Scientific Committee:
(a) it adversely affects threatened species, populations or
ecological communities, or
(b) it could cause species, populations or ecological
communities that are not threatened to become
threatened.
(2) The regulations may prescribe criteria for the determination
of matters under this section.
220FD Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of
section 220F, 220FA, 220FB or 220FC is not to be made
unless the Minister certifies in writing that:
(a) the criteria are based on scientific principles only, and
(b) any criteria for listing under the Environment
Protection and Biodiversity Conservation Act 1999 of
the Commonwealth were given due consideration
before the regulation was made.
[12] Section 220G
Omit the section. Insert instead:
220G Fisheries Scientific Committee responsible for lists
The Fisheries Scientific Committee is responsible for
determining whether any species, populations, ecological
communities or threatening processes should be listed in
Schedule 4, 4A, 5 or 6.
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Threatened Species Legislation Amendment Bill 2004
Schedule 2 Amendment of Fisheries Management Act 1994 No 38
[13] Section 220H
Omit the section. Insert instead:
220H Who may initiate action for listing
(1) The Fisheries Scientific Committee may make a
determination for the purposes of this Subdivision on its own
initiative.
(2) The Fisheries Scientific Committee may also make a
determination:
(a) following a request by the Minister or the NRC, or
(b) on a nomination, made in accordance with this
Division, of any other person.
(3) A proposal that involves the alteration of the listing status of
a species or ecological community (by moving the description
of the species or ecological community from one Schedule to
another or from one Part of a Schedule to another Part of the
Schedule) may be dealt with under this Subdivision as a
composite proposal, whereby all aspects of the proposal are
dealt with together.
[14] Section 220I How nominations made
Insert ", 4A" after "Schedule 4" in section 220I (1).
[15] Section 220I (5)
Insert after section 220I (4):
(5) The Fisheries Scientific Committee is to give notice of a
nomination to the Minister and the NRC within 14 days after
the nomination is made.
[16] Section 220J Consideration of nomination by Fisheries Scientific
Committee
Omit section 220J (1). Insert instead:
(1) The Fisheries Scientific Committee is to determine priorities
for its consideration of nominations every 12 months and in
determining those priorities is to have regard to:
(a) the degree of threat, immediacy of threat, taxonomic
distinctiveness and such other matters as the Fisheries
Scientific Committee considers relevant, and
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Threatened Species Legislation Amendment Bill 2004
Amendment of Fisheries Management Act 1994 No 38 Schedule 2
(b) any advice or recommendations of the Minister or the
NRC concerning those priorities.
(1A) The NRC and the Minister may give advice or make
recommendations to the Fisheries Scientific Committee
concerning priorities for the consideration of nominations by
the Fisheries Scientific Committee, and in giving that advice
or making those recommendations the NRC and the Minister
may consider State-wide issues of concern in biodiversity
conservation.
[17] Section 220J (3) (a)
Omit "recommend". Insert instead "make".
[18] Section 220J (4)
Insert ", the NRC" after "Minister".
[19] Section 220K Notification and consultation with respect to
proposed determination of Fisheries Scientific Committee
Omit "recommendation" wherever occurring.
Insert instead "determination".
[20] Section 220K
Insert ", 4A" after "Schedule 4".
[21] Sections 220L220MA
Omit sections 220L and 220M. Insert instead:
220L Fisheries Scientific Committee's final determination
(1) The Fisheries Scientific Committee must either accept or
reject a proposal for the amendment of Schedule 4, 4A, 5 or
6, and must give reasons for the determination.
(2) The reasons for a determination are to include reference to
such of the criteria prescribed by the regulations under
sections 220F220FC as may be relevant to the
determination.
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(3) In a case involving a nomination, the Fisheries Scientific
Committee must make a final determination within 6 months
after the end of the period allowed for public comment on the
proposed determination of the nomination under section
220K (as provided under section 284).
(4) Before making a final determination the Fisheries Scientific
Committee must give the Minister notice in writing of the
proposed final determination. The Minister then has 2 months
to decide whether to refer the proposed final determination
back to the Fisheries Scientific Committee for further
consideration under section 220M.
(5) The Fisheries Scientific Committee is not to proceed to make
the proposed final determination unless:
(a) the Minister has notified the Fisheries Scientific
Committee that the Minister has decided not to refer the
proposed determination back to the Fisheries Scientific
Committee for further consideration, or
(b) the Minister has not referred the proposed final
determination back to the Fisheries Scientific
Committee for further consideration under section
220M within 2 months after the Minister was given
notice of the proposed final determination, or
(c) if the Minister has referred the proposed final
determination back to the Fisheries Scientific
Committee for further consideration under section
220M within that 2 months, the Fisheries Scientific
Committee has decided to proceed with the final
determination following that further consideration.
(6) The Minister may at the request of the Fisheries Scientific
Committee extend and further extend the period of 6 months
under subsection (3), to a maximum period of 2 years.
(7) Failure to make a final determination within the period
required by this section or to give notice to the Minister of a
proposed final determination within the period required by
this section does not affect the validity of the determination.
220M Minister's response to proposed final determination
(1) Within 2 months after receiving notice from the Fisheries
Scientific Committee of a proposed final determination, the
Minister may:
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(a) notify the Fisheries Scientific Committee that the
Minister has decided not to refer the proposed
determination back to the Fisheries Scientific
Committee for further consideration, or
(b) refer the proposed final determination back to the
Fisheries Scientific Committee for further
consideration.
(2) The Minister may only refer a matter back to the Fisheries
Scientific Committee for reasons of a scientific nature
provided to the Fisheries Scientific Committee. In the case of
a nomination, the Fisheries Scientific Committee is to notify
the person who made the nomination that the matter has been
referred back to the Fisheries Scientific Committee and of the
Minister's reasons for doing so.
(3) If a proposed final determination is referred back to the
Fisheries Scientific Committee for further consideration:
(a) the Fisheries Scientific Committee may, after further
considering it, decide to proceed with the final
determination, to change the final determination or not
to proceed with the final determination, and
(b) the Fisheries Scientific Committee is to make that
decision within 3 months, and
(c) the Minister cannot refer the matter back to the
Fisheries Scientific Committee again after it has made
that decision.
(4) Failure to make a decision within the period required by this
section does not affect the validity of the decision.
220MA Publication of final determination
(1) On making a final determination, the Fisheries Scientific
Committee must, as soon as practicable:
(a) make an order under section 220D giving effect to the
determination, and
(b) in a case involving a nomination, notify the person who
made the nomination of the determination, and
(c) notify the Minister, the NRC and the Director-General
of the determination, and
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(d) publish notice of the determination in a newspaper
circulating generally throughout the State and, if the
determination is likely to affect a particular area or
areas (other than the State as a whole), in a newspaper
circulating generally in that area or areas, and
(e) 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) The reasons for a final determination are to include reference
to such of the criteria prescribed by the regulations under
sections 220F220FC as may be relevant to the
determination.
(4) 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 Department,
(b) in response to a request made by contacting an office of
the Department in a manner specified in the notice of
the determination,
(c) in response to a request made in person at an office of
the Department at an address specified in the notice of
the determination.
(5) The validity of a final determination cannot be questioned in
any legal proceedings except those commenced in a court by
any person within 3 months of the date of publication in the
Gazette of notice of the making of the final determination.
[22] Section 220N Provisional listing
Omit section 220N (2). Insert instead:
(2) The Fisheries Scientific Committee may make a
determination for the provisional listing of any such
endangered species without complying with sections 220K,
220L (3)(6) and 220M. The other provisions of this
Subdivision apply to and in respect of any such determination.
(2A) The Fisheries Scientific Committee must make a
determination about a nomination within 6 months after it is
made or, if additional information has been requested, after
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that information has been provided or the period specified for
its provision has expired. Failure to make a determination
within that period does not affect the validity of the
determination.
[23] Section 220NA
Insert after section 220N:
220NA Lists to be kept under review
(1) The Fisheries Scientific Committee must keep the lists in
Schedules 4, 4A, 5 and 6 under review and must, at least every
2 years, determine whether any changes to the lists are
necessary.
(2) The NRC or the Minister may give advice or make
recommendations to the Fisheries Scientific Committee
concerning priorities for the review of the lists in Schedules 4,
4A, 5 and 6 under this section, and the Fisheries Scientific
Committee is to have regard to any such advice or
recommendations.
(3) The NRC or the Minister may give directions to the Fisheries
Scientific Committee requiring the Fisheries Scientific
Committee to undertake investigations for the purpose of
identifying species, populations and communities that are
potentially threatened species, populations and communities.
[24] Part 7A, Division 3, heading
Omit the heading. Insert instead:
Division 3 Critical habitat of endangered species,
populations and ecological communities and
critically endangered species and ecological
communities
[25] Sections 220P (1), 220T (1), 220Y (2) (a)
Insert "or critically endangered species or ecological community" after
"endangered species, population or ecological community" wherever
occurring.
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[26] Section 220Q Identification of critical habitat
Insert "and each critically endangered species and ecological community"
after "ecological community" in section 220Q (1).
[27] Section 220ZD Damage to habitat of threatened species,
population or ecological community
Insert at the end of section 220ZD:
(2) In proceedings for an offence under this section in respect of
an act or an omission of a person that causes damage to any
habitat (other than critical habitat) of a threatened species,
population or ecological community, it is to be conclusively
presumed that the person knew that the land concerned was
habitat of that kind if it is established that:
(a) the act or omission occurred in the course of the
carrying out of development or an activity for which
development consent under Part 4 of the Environmental
Planning and Assessment Act 1979, or an approval to
which Part 5 of that Act applies, was required but not
obtained, or
(b) the act or omission constituted a failure to comply with
any such development consent or approval.
[28] Section 220ZF Defences
Insert after section 220ZF (1) (b):
(b1) was authorised by a property vegetation plan approved
under the Native Vegetation Act 2003, being an act that
had the benefit of biodiversity certification of the native
vegetation reform package under Division 10 when the
plan was approved, or
[29] Section 220ZF (1) (e)
Omit "agricultural or".
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[30] Section 220ZFA
Insert after section 220ZF:
220ZFA Further defences
(1) It is a defence to a prosecution for an offence against this
Division if the accused proves that the act constituting the
alleged offence was any of the following activities:
(a) clearing of native vegetation that constitutes a routine
agricultural management activity,
(b) a routine farming practice activity (other than clearing
of native vegetation),
Note. Both (a) and (b) must be read subject to subsection (3).
(c) an activity that is permitted under any of the following
provisions of the Native Vegetation Act 2003:
(i) section 19 (Clearing of non-protected regrowth
permitted),
(ii) section 23 (Continuation of existing farming
activities),
(iii) section 24 (Sustainable grazing),
(d) any other activity prescribed by the regulations for the
purposes of this section.
(2) Each of the following is a routine agricultural management
activity for the purposes of this section:
(a) the construction, operation and maintenance of rural
infrastructure:
(i) including (subject to the regulations) dams,
permanent fences, buildings, windmills, bores,
air strips (in the Western Division), stockyards,
and farm roads, but
(ii) not including rural infrastructure in areas zoned
as rural-residential under environmental planning
instruments or on small holdings (as defined in
the regulations),
(b) the removal of noxious weeds under the Noxious Weeds
Act 1993,
(c) the control of noxious animals under the Rural Lands
Protection Act 1998,
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(d) the collection of firewood (except for commercial
purposes),
(e) the harvesting or other clearing of native vegetation
planted for commercial purposes,
(f) the lopping of native vegetation for stock fodder
(including uprooting mulga in the Western Division in
areas officially declared to be drought affected),
(g) traditional Aboriginal cultural activities (except
commercial activities),
(h) the maintenance of public utilities (such as those
associated with the transmission of electricity, the
supply of water, the supply of gas and electronic
communication),
(i) any activity reasonably considered necessary to remove
or reduce an imminent risk of serious personal injury or
damage to property.
(3) This section does not authorise the doing of an act:
(a) if it exceeds the minimum extent reasonably necessary
for carrying out the routine agricultural management
activity or routine farming practice activity, or
(b) if it is done for a work, building or structure before the
grant of any statutory approval or other authority
required for the work, building or structure.
(4) This section does not apply to land described or referred to in
Part 3 (Urban areas) of Schedule 1 to the Native Vegetation
Act 2003.
(5) The regulations may make provision for or with respect to:
(a) extending, limiting or varying the activities referred to
in subsection (1) (and that subsection is to be construed
accordingly), or
(b) excluding any specified land or class of land from the
operation of subsection (1), or
(c) including any specified land or class of land in the
operation of subsection (1) that would otherwise be
excluded from its operation by subsection (4).
(6) Until regulations under subsection (5) otherwise provide, any
regulations in force under section 11 (2) of the Native
Vegetation Act 2003 apply for the purposes of extending,
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limiting or varying the activities referred to in subsection (2)
in the same way as those regulations apply for the purposes of
extending, limiting or varying the activities referred to in
section 11 (1) of that Act.
[31] Section 220ZI Director-General to prepare recovery plans for
threatened species, populations and ecological communities
Omit "must prepare" from section 220ZI (1).
Insert instead "may prepare".
[32] Section 220ZI (1) (a)
Insert "or critically endangered" after "endangered".
[33] Section 220ZI (1)
Omit "as soon as practicable after it is listed,".
[34] Section 220ZI (2)
Insert "and may be made for part of a range of a species, population or
ecological community," after "community" where firstly occurring.
[35] Section 220ZJ Director-General to prepare threat abatement plans
Omit "must prepare" from section 220ZJ (1).
Insert instead "may prepare".
[36] Section 220ZK
Omit the section. Insert instead:
220ZK Priorities for recovery or threat abatement plans
Priorities in the preparation of recovery plans or threat
abatement plans are to be in accordance with the priorities for
recovery or threat abatement established by the relevant
Priorities Action Statement.
[37] Section 220ZL Deadlines for preparation of recovery or threat
abatement plans
Omit the section.
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[38] Section 220ZO Public and other consultation concerning draft
recovery or threat abatement plan
Omit section 220ZO (3). Insert instead:
(3) If the Director-General considers that a public authority
should be responsible for the implementation of a measure to
be included in a plan:
(a) the Director-General must consult with the chief
executive officer of the public authority before
completing the preparation of the plan, and
(b) a measure must not be included in a plan for
implementation by a public authority unless the chief
executive officer of the public authority approves of the
inclusion of the measure.
[39] Part 7A, Division 5A
Insert after Division 5 of Part 7A:
Division 5A Threatened Species Priorities Action
Statements
220ZVA What the Statement provides for
A Threatened Species Priorities Action Statement (also called
a Priorities Action Statement) is a statement that:
(a) sets out the strategies (recovery and threat abatement
strategies) to be adopted for promoting the recovery of
each threatened species, population and ecological
community to a position of viability in nature and for
managing each key threatening process as provided by
section 220ZJ (1), and
(b) establishes relative priorities for the implementation of
recovery and threat abatement strategies, and
(c) establishes performance indicators to facilitate
reporting on achievements in implementing recovery
and threat abatement strategies and their effectiveness,
and
(d) contains a status report on each threatened species,
where information is available, and
(e) sets out clear timetables for recovery and threat
abatement planning and achievement.
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220ZVB Director-General to prepare and adopt Priorities Action
Statement
(1) The Director-General is to prepare and adopt a Priorities
Action Statement for the purposes of this Part.
(2) The Priorities Action Statement must be completed as soon as
practicable and no later than 12 months after the date of assent
to the Threatened Species Legislation Amendment Act 2004.
(3) The Director-General is to review the Priorities Action
Statement every 3 years and may make changes to the
Priorities Action Statement pursuant to any such review by
adopting amendments to the Statement.
(4) In preparing or reviewing a Priorities Action Statement, the
Director-General is to seek advice from the NRC, the
Fisheries Scientific Committee, BDAC, SEAC and such other
State government agencies as the Director-General considers
appropriate.
220ZVC Public consultation on draft statement or amendments
Before adopting a Priorities Action Statement or any
amendment to the statement, the Director-General must first
prepare a draft of the statement or amendment and give the
public an opportunity to make submissions on the draft
statement or amendment.
Note. Section 284 regulates the public consultation procedure. It
requires copies of the draft statement to be publicly exhibited and a
period of at least 30 days for public comment.
220ZVD Consideration of submissions by Director-General
(1) The Director-General must consider all written submissions
received by the Director-General on or before the date
specified in the notice.
(2) The Director-General may alter the draft statement or
amendment to take account of those submissions.
(3) The Director-General must adopt the Priorities Action
Statement or amendment (with or without alterations) within
4 months after the end of the period allowed for the public
comment on the draft statement or amendment.
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220ZVE Review to include report on achievements
As part of each review of the Priorities Action Statement, the
Director-General is to include in the Priorities Action
Statement a report on achievements in implementing the
strategies established by the Priorities Action Statement
during the period to which the review applies.
[40] Section 221NA
Insert after section 221N:
221NA Regulations
(1) The regulations may provide that development or an activity
of a specified type constitutes, or does not constitute,
development that is likely to significantly affect threatened
species, populations or ecological communities, or their
habitats.
(2) Any such regulation has effect (despite the provisions of this
Act or any other Act) for the purposes of the operation of:
(a) Division 6 (Licensing and Ministerial orders) of Part
7A of this Act, and
(b) Parts 4 and 5 of the Environmental Planning and
Assessment Act 1979 (including the operation of those
Parts as applying under any other Act).
Note. Exceptions for the carrying out of routine agricultural management
activities are provided for in section 220ZFA.
(3) A regulation that provides that development or an activity of
a specified type does not constitute development that is likely
to significantly affect threatened species, populations or
ecological communities, or their habitats, is not to be made
unless the Minister has certified in writing that the
development or activity is of minimal environmental impact
on threatened species, populations and ecological
communities, and their habitats.
[41] Section 221ZB Functions of Fisheries Scientific Committee
Insert "or critically endangered" after "endangered" in section
221ZB (2) (b).
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[42] Section 221ZB (2) (e)
Insert "and the NRC" after "Minister" where firstly occurring.
[43] Part 7A, Divisions 10 and 11
Insert after Division 9 of Part 7A:
Division 10 Biodiversity certification of native vegetation
reform package
221ZF Native vegetation reform package
For the purposes of this Division, the native vegetation
reform package is the package of reforms comprising the
following:
(a) the Native Vegetation Act 2003 and the regulations
under that Act,
(b) State-wide standards and targets for natural resource
management issues recommended under the Natural
Resources Commission Act 2003 and adopted by the
Government,
(c) catchment action plans under the Catchment
Management Authorities Act 2003,
(d) protocols and guidelines adopted or made under the
regulations under the Native Vegetation Act 2003, the
Catchment Management Authorities Act 2003 and the
Natural Resources Commission Act 2003.
221ZG Biodiversity certification of native vegetation reform package
(1) The Minister may by order published in the Gazette confer
biodiversity certification on the native vegetation reform
package for the purposes of this Part.
(2) The Minister may confer biodiversity certification even if the
native vegetation reform package does not comprise all the
elements of the package.
(3) The Minister may, by order published in the Gazette, suspend
biodiversity certification of the native vegetation reform
package if the composition of the package changes after its
certification (for instance by any amendment of the Native
Vegetation Act 2003 or regulations under that Act, or by the
approval or amendment of a State-wide standard or target or
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of a catchment action plan). The Minister may by order
published in the Gazette lift any suspension under this
subsection.
(4) The Minister may, in an order conferring biodiversity
certification or in another order published in the Gazette,
exclude from the certification of the native vegetation reform
package any specified class of activity.
(5) In deciding on any action under this section, the Minister is to
have regard to the likely impact of the native vegetation
reform package (or any relevant aspect of its operation) on the
achievement of the objects of this Part.
221ZH Effect of biodiversity certification
While biodiversity certification of the native vegetation
reform package is in force, any activity on land within the area
of operations of each catchment management authority has
the benefit of that biodiversity certification (except any
activity excluded from certification under section 221ZG (4)).
Note. Biodiversity certification has the following effects:
(a) the clearing of native vegetation as authorised by a property
vegetation plan that is approved while the clearing has the benefit
of biodiversity certification is a defence to a prosecution for
certain offences under Part 8A of the NPW Act, and
(b) development consent to clearing of native vegetation that has the
benefit of biodiversity certification does not require the
preparation of a species impact statement or consultation
between Ministers. (See section 14 (4) of the Native Vegetation
Act 2003.)
221ZI Suspension of certification in connection with implementation
of package
(1) The Minister may by order published in the Gazette suspend
biodiversity certification of the native vegetation reform
package in its application to a particular catchment
management authority if the Minister is of the opinion that the
catchment management authority:
(a) has failed to properly exercise its functions under the
native vegetation reform package, or
(b) has otherwise failed to exercise its functions in a
manner that promotes the conservation of threatened
species, populations and ecological communities.
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(2) During the suspension of biodiversity certification of the
native vegetation reform package in its application to a
particular catchment management authority, land within the
area of operations of the catchment management authority
does not have the benefit of the biodiversity certification of
the native vegetation reform package.
(3) The Minister is only entitled to form an opinion for the
purposes of this section:
(a) based on the outcomes of any audit undertaken by the
NRC, or
(b) based on the results of an investigation conducted by
the Director-General, or
(c) in such other circumstances as may be prescribed by the
regulations.
221ZJ Notification of certification, variation, suspension or
revocation
(1) Notice of the grant of biodiversity certification under this
Division or of any suspension of that certification under this
Division is to be given within 14 days:
(a) to the Director-General of the Department of
Infrastructure, Planning and Natural Resources, and
(b) on the website of the Department of Primary Industries.
(2) The Minister is to keep a register containing copies of each
notice of the grant of biodiversity certification under this
Division and of any suspension or revocation of that
certification.
(3) The register is to be open for public inspection, without
charge, during ordinary business hours, and copies of or
extracts from the register are to be made available to the
public on request, on payment of the fee fixed by the Minister.
Division 11 Biodiversity certification of environmental
planning instruments
221ZK Biodiversity certification
(1) The Minister may by order published in the Gazette confer
biodiversity certification on an EPI if satisfied that the EPI, in
addition to any other relevant measures to be taken, will lead
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to the overall improvement or maintenance of biodiversity
values. Biodiversity values include threatened species,
populations and ecological communities and their habitats.
(2) In deciding whether to confer biodiversity certification on an
EPI the Minister must also have regard to the following
considerations:
(a) the likely social and economic consequences of
implementation of the EPI,
(b) the most efficient and effective use of available
resources for the conservation of threatened species,
populations and ecological communities,
(c) the principles of ecologically sustainable development,
(d) conservation outcomes resulting from any reservation
or proposed reservation of land under Part 4 of the
NPW Act or the entering into of a conservation
agreement relating to the land under that Act, or
resulting from any other action to secure the protection
of land for conservation purposes,
(e) conservation outcomes resulting from the operation
outside the area of operation of the EPI of strategies,
plans, agreements and other instruments (whether or
not they are EPIs).
(3) In deciding any matter under this section the Minister is to
have regard to the objects of this Part.
(4) An EPI cannot be biodiversity certified unless:
(a) notice is given of proposed biodiversity certification of
the EPI in the course of the public exhibition of a draft
of the EPI under section 66 of the Environmental
Planning and Assessment Act 1979 or by public
exhibition following a procedure that substantially
accords with the procedure for public exhibition
required by that section, and
(b) copies of submissions made in response to an invitation
for submissions in the course of that public exhibition
have been provided to the Minister.
(5) The Minister may issue guidelines for the purpose of assisting
in the preparation of EPIs for biodiversity certification.
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221ZL Certification can be conditional
(1) Biodiversity certification of an EPI can be subject to
conditions, including conditions that limit the certification to
specified threatened species, populations and communities or
to a specified part of the land to which the EPI applies.
(2) Unless limited by the conditions of certification, biodiversity
certification of an EPI applies to the whole of the land to
which the EPI applies, and to all threatened species,
populations and ecological communities.
221ZM Effect of biodiversity certification
(1) Any development for which development consent is required
under the provisions of a biodiversity certified EPI is, for the
purposes of Part 4 of the Environmental Planning and
Assessment Act 1979 taken to be development that is not
likely to significantly affect any threatened species,
population or ecological community, or its habitat.
(2) An activity to which Part 5 of the Environmental Planning
and Assessment Act 1979 applies that a biodiversity certified
EPI provides can be carried out without the need for
development consent is, for the purposes of that Part, taken to
be an activity that is not likely to significantly affect any
threatened species, population or ecological community, or its
habitat.
(3) This section applies only to development or an activity on
land to which the certification of the EPI applies and only to
threatened species, populations or ecological communities
(and their habitat) to which the certification applies.
221ZN Period of certification and extension
(1) Biodiversity certification of an EPI remains in force for such
period as the Minister determines and specifies in the
certification. If no period is specified, biodiversity
certification remains in force for 10 years.
(2) Prior to the expiration of biodiversity certification of an EPI,
the Minister may by order published in the Gazette extend by
a period of up to 10 years the period for which that
certification remains in force, but only if the Minister has
reviewed the EPI to take account of any new listing of a
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species, population or ecological community or the discovery
of a species, population or ecological community not
previously known in an area.
(3) The Minister must not extend the period of biodiversity
certification of an EPI unless, prior to granting the extension,
the Minister:
(a) by notice published in a newspaper circulating
generally throughout the State, invites persons to make
written submissions to the Minister on the proposed
extension, and
(b) considers any written submissions received before the
closing date specified in the notice for the making of
submissions (being a date that is not less than 30 days
after the date the notice is first published under this
subsection).
(4) This section does not prevent further biodiversity certification
of an EPI under this Division.
221ZO Reassessment of biodiversity certification
(1) The Minister is to reassess the grant of biodiversity
certification in respect of an EPI following any review of the
EPI under the Environmental Planning and Assessment Act
1979, or any rezoning of land to which the EPI applies, to
determine whether biodiversity certification should be
maintained or modified.
(2) If a local council undertakes a review of a biodiversity
certified EPI that applies to land in its area, the council is to
notify the Minister of the commencement of that review, and
the outcome of that review, as soon as practicable.
221ZP Suspension and revocation of certification
The Minister may by order published in the Gazette suspend
or revoke the certification of an EPI if the Minister is of the
opinion that:
(a) the EPI fails (or will, as a result of any proposed
amendment of the EPI, fail) to make appropriate
provision for the conservation of threatened species,
populations and ecological communities, or
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(b) the consent authority under the EPI has failed to
adequately comply with a direction by the Minister to
review the EPI in response to any new listing of a
species, population or ecological community or the
discovery of a species, population or ecological
community not previously known in an area.
221ZQ Notification of certification, suspension or revocation
(1) Notice of the grant of biodiversity certification under this
Division or of the extension, suspension or revocation of that
certification is to be given within 21 days:
(a) to the Director-General of the Department of
Infrastructure, Planning and Natural Resources, and
(b) on the website of the Department of Primary Industries,
and
(c) to each local council that is the council of an area of
which land to which the EPI applies forms part.
(2) The Minister is to keep a register containing copies of each
notice of the grant of biodiversity certification under this
Division and of any extension, suspension or revocation of
that certification.
(3) The register is to be open for public inspection, without
charge, during ordinary business hours, and copies of or
extracts from the register are to be made available to the
public on request, on payment of the fee fixed by the Minister.
221ZR Concurrence can be conditional on voluntary conservation
action
(1) The Director-General may grant concurrence under section
79B or 112C of the Environmental Planning and Assessment
Act 1979 conditional on the taking of specified action
(voluntary action, as provided by subsection (2)) that the
Director-General considers will significantly benefit
threatened species conservation, but only if the Director-
General is satisfied that the person who proposes to carry out
the development or activity to which the concurrence relates
has agreed to take the voluntary action and agrees to the
imposition of the condition.
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Schedule 2 Amendment of Fisheries Management Act 1994 No 38
(2) The voluntary action that can be required by a condition
imposed under this section is any one or more of the
following:
(a) the reservation of land under Part 4 of the NPW Act or
the entering into of a conservation agreement relating to
the land under that Act,
(b) action to secure the protection of land for conservation
purposes by a method that the Director-General
considers satisfactory,
(c) action to restore threatened species habitat on land
referred to in paragraph (a) or (b),
(d) the contribution of money for a purpose referred to in
paragraph (a)(c).
(3) In determining whether to confer biodiversity certification on
an EPI, the Minister is entitled to have regard to the
conservation benefits that will result from the taking of action
in accordance with a condition proposed to be imposed under
this section (as if those benefits would result from the
implementation of the EPI).
(4) When such a condition is imposed as a condition of
concurrence in respect of development, the consent authority
for the development must also impose the condition on its
consent for the development.
(5) The annual report of the Department is to include an
assessment of how any voluntary action taken pursuant to a
condition imposed under this section has benefited or is likely
to benefit the adversely affected threatened species, including
details of how any land or money contributed pursuant to such
a condition has benefited or is likely to benefit threatened
species.
221ZS Director-General may accredit persons to prepare
assessments and surveys
(1) The Director-General is to institute arrangements for the
accreditation of suitably qualified and experienced persons to
undertake and prepare surveys and assessments for use in
connection with:
(a) biodiversity certification of EPIs under this Division, or
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(b) any assessment of the matters referred to in section 5A
(Significant effect on threatened species, populations or
ecological communities, or their habitats) of the
Environmental Planning and Assessment Act 1979.
(2) An applicant for accreditation must furnish the Director-
General with such information as the Director-General
requires to effectively determine the application and the
application must be accompanied by the fee fixed by the
Director-General for the consideration of the application.
(3) An accreditation is to be for the period (not exceeding 3 years)
specified by the Director-General in the instrument of
accreditation, and the accreditation (or any renewal of it) may
be given subject to the conditions and restrictions (if any)
specified in the instrument of accreditation.
(4) Without limiting subsection (3), an accreditation is to include
conditions that require surveys and assessments to be
undertaken and prepared in accordance with standards
approved from time to time by the Director-General by order
published in the Gazette.
(5) The Director-General may vary conditions or restrictions (if
any) attaching to an accreditation and may suspend or cancel
an accreditation.
[44] Section 284 Public consultation procedure
Omit "recommendation" from section 284 (1) (f).
Insert instead "determination".
[45] Section 284 (1) (h)
Insert after section 284 (1) (g):
(h) a draft Priorities Action Statement or amendment of
such a Statement under Division 5A of Part 7A.
[46] Section 290
Omit the section. Insert instead:
290 Review of Act
(1) The Minister is to review this Act to determine whether the
policy objectives of the Act are being fulfilled and whether
the terms of the Act, and any environmental planning
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Schedule 2 Amendment of Fisheries Management Act 1994 No 38
instruments granted biodiversity certification under Division
11 of Part 7A, remain appropriate for securing those
objectives.
(2) The review is to be undertaken as soon as possible after the
period of 5 years from the date of assent to the Threatened
Species Legislation Amendment Act 2004.
(3) The Minister is to make arrangements for public consultation
with respect to the review.
(4) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after the end of the
period of 5 years.
[47] Schedule 4A
Insert after Schedule 4:
Schedule 4ACritically endangered species and
ecological communities
(Section 220C)
Part 1 Critically endangered species
Part 2 Critically endangered ecological
communities
[48] Schedule 5, heading
Omit the heading and section reference. Insert instead:
Schedule 5 Vulnerable species and ecological
communities
(Section 220C)
Part 1 Vulnerable species
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[49] Schedule 5
Insert at the end of the Schedule:
Part 2 Vulnerable ecological communities
[50] Schedule 7 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Threatened Species Legislation Amendment Act 2004, to the
extent that it amends this Act
[51] Schedule 7
Insert after clause 17B:
17C Referral of proposed final determinations to Minister
Sections 220L and 220M, as substituted by the Threatened
Species Legislation Amendment Act 2004 extend to a matter
pending under section 220L and not finally determined before
the commencement of this clause.
17D Threatened Species Priorities Action Statements
The Director-General may exercise any function of the
Director-General under Division 5A of Part 7A prior to the
commencement of that Division, for the purpose of
facilitating the adoption of a Threatened Species Priorities
Action Statement on the commencement of that Division.
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Threatened Species Legislation Amendment Bill 2004
Schedule 3 Amendment of other threatened species legislation
Schedule 3 Amendment of other threatened species
legislation
(Section 3)
3.1 National Parks and Wildlife Act 1974 No 80
[1] Section 5 Definitions
Insert in alphabetical order in section 5 (1):
authorised officer means the Director-General or a person
appointed as an authorised officer for the time being under
section 156B.
[2] Section 5 (1)
Omit the definitions of endangered ecological community, endangered
population and endangered species.
Insert instead:
endangered ecological community means an endangered or
critically endangered ecological community within the
meaning of the Threatened Species Conservation Act 1995.
endangered population means an endangered population
within the meaning of the Threatened Species Conservation
Act 1995.
endangered species means an endangered or critically
endangered species within the meaning of the Threatened
Species Conservation Act 1995.
[3] Section 98 Harming protected fauna, other than threatened
species, endangered populations or endangered ecological
communities
Insert after section 98 (5):
(6) A person is not to be convicted of an offence arising under
subsection (2) if the person proves that the act constituting the
offence was done in the course of carrying out an activity that
would constitute a defence under section 118G (Defences) to
a prosecution for an offence under Part 8A.
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[4] Section 118A Harming or picking threatened species, endangered
populations or endangered ecological communities
Insert after section 118A (3) (a1):
(a2) was authorised by a property vegetation plan approved
under the Native Vegetation Act 2003, being an act that
had the benefit of biodiversity certification of the native
vegetation reform package under Division 4 of Part 7 of
the Threatened Species Conservation Act 1995 when
the plan was approved, or
Note. See also the defences under section 118G.
[5] Section 118D Damage habitat of threatened species, endangered
population or endangered ecological community
Insert after section 118D (2) (a1):
(a2) was authorised by a property vegetation plan approved
under the Native Vegetation Act 2003, being an act that
had the benefit of biodiversity certification of the native
vegetation reform package under Division 4 of Part 7 of
the Threatened Species Conservation Act 1995 when
the plan was approved, or
Note. See also the defences under section 118G.
[6] Section 118D (4)
Insert after section 118D (3):
(4) In proceedings for an offence under this section in respect of
an act or an omission of a person that causes damage to any
habitat (other than critical habitat) of a threatened species, an
endangered population or an endangered ecological
community, it is to be conclusively presumed that the person
knew that the land concerned was habitat of that kind if it is
established that:
(a) the act or omission occurred in the course of the
carrying out of development or an activity for which
development consent under Part 4 of the Environmental
Planning and Assessment Act 1979, or an approval to
which Part 5 of that Act applies, was required but not
obtained, or
(b) the act or omission constituted a failure to comply with
any such development consent or approval.
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Schedule 3 Amendment of other threatened species legislation
[7] Section 118G
Insert after section 118F:
118G Defences
(1) It is a defence to a prosecution for an offence under this Part
if the accused proves that the act constituting the alleged
offence was any of the following activities:
(a) clearing of native vegetation that constitutes a routine
agricultural management activity,
(b) a routine farming practice activity (other than clearing
of native vegetation),
Note. Both (a) and (b) must be read subject to subsection (3).
(c) an activity that is permitted under any of the following
provisions of the Native Vegetation Act 2003:
(i) section 19 (Clearing of non-protected regrowth
permitted),
(ii) section 23 (Continuation of existing farming
activities),
(iii) 24 (Sustainable grazing),
(d) any other activity prescribed by the regulations for the
purposes of this section.
(2) Each of the following is a routine agricultural management
activity for the purposes of this section:
(a) the construction, operation and maintenance of rural
infrastructure:
(i) including (subject to the regulations) dams,
permanent fences, buildings, windmills, bores,
air strips (in the Western Division), stockyards,
and farm roads, but
(ii) not including rural infrastructure in areas zoned
as rural-residential under environmental planning
instruments or on small holdings (as defined in
the regulations),
(b) the removal of noxious weeds under the Noxious Weeds
Act 1993,
(c) the control of noxious animals under the Rural Lands
Protection Act 1998,
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Amendment of other threatened species legislation Schedule 3
(d) the collection of firewood (except for commercial
purposes),
(e) the harvesting or other clearing of native vegetation
planted for commercial purposes,
(f) the lopping of native vegetation for stock fodder
(including uprooting mulga in the Western Division in
areas officially declared to be drought affected),
(g) traditional Aboriginal cultural activities (except
commercial activities),
(h) the maintenance of public utilities (such as those
associated with the transmission of electricity, the
supply of water, the supply of gas and electronic
communication),
(i) any activity reasonably considered necessary to remove
or reduce an imminent risk of serious personal injury or
damage to property.
(3) This section does not authorise the doing of an act:
(a) if it exceeds the minimum extent reasonably necessary
for carrying out the routine agricultural management
activity or routine farming practice activity, or
(b) if it is done for a work, building or structure before the
grant of any statutory approval or other authority
required for the work, building or structure.
(4) This section does not apply to land described or referred to in
Part 3 (Urban areas) of Schedule 1 to the Native Vegetation
Act 2003.
(5) The regulations may make provision for or with respect to:
(a) extending, limiting or varying the activities referred to
in subsection (1) (and that subsection is to be construed
accordingly), or
(b) excluding any specified land or class of land from the
operation of subsection (1), or
(c) including any specified land or class of land in the
operation of subsection (1) that would otherwise be
excluded from its operation by subsection (4).
(6) Until regulations under subsection (5) otherwise provide, any
regulations in force under section 11 (2) of the Native
Vegetation Act 2003 apply for the purposes of extending,
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Schedule 3 Amendment of other threatened species legislation
limiting or varying the activities referred to in subsection (2)
in the same way as those regulations apply for the purposes of
extending, limiting or varying the activities referred to in
section 11 (1) of that Act.
[8] Section 156B
Insert after section 156A:
156B Powers of authorised officers
(1) The Director-General may appoint any person (including a
class of persons) to be an authorised officer for the purposes
of national parks legislation. Such an appointment is to be
made under Chapter 7 of the Protection of the Environment
Operations Act 1997 (the POEO Act) as applied under this
section.
(2) An authorised officer has and may exercise the functions of an
authorised officer under Chapter 7 (except Part 7.6) of the
POEO Act for the following purposes:
(a) for determining whether there has been compliance
with or a contravention of national parks legislation,
(b) for obtaining information or records for purposes
connected with the administration of national parks
legislation,
(c) generally for administering national parks legislation.
(3) The provisions of Chapter 7 of the POEO Act apply to and in
respect of national parks legislation as if:
(a) references in those provisions to an authorised officer
were references to authorised officers appointed as
referred to in this section, and
(b) references in those provisions to "this Act" were
references to an Act or regulation forming part of the
national parks legislation, and
(c) references in those provisions to the EPA were
references to the Director-General, and
(d) the Director-General were the appropriate regulatory
authority for matters concerning national parks
legislation.
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Amendment of other threatened species legislation Schedule 3
(4) The functions that an authorised officer has under Chapter 7
of the POEO Act are, for the purposes of any provision of
national parks legislation, taken to be functions under national
parks legislation.
(5) If an authorised officer has functions in respect of a matter
under both Chapter 7 of the POEO Act (as applying under this
section) and under any other provision of national parks
legislation, the fact that there is a restriction on the exercise of
a function under national parks legislation does not of itself
operate to restrict the exercise by an authorised officer of any
similar or the same function under Chapter 7 of the POEO
Act.
(6) In this section:
national parks legislation means each of the following Acts
and the regulations under those Acts:
(a) this Act,
(b) Threatened Species Conservation Act 1995,
(c) Wilderness Act 1987,
(d) Marine Parks Act 1997.
[9] Sections 159A and 159B
Insert after section 159:
159A Liability of landholder for certain harming and picking
offences
In any criminal proceedings for an offence under section 98
or Part 8A, the landholder of any land on which the offence is
alleged to have occurred is taken to have carried out the
activity constituting the alleged offence unless it is
established that:
(a) the activity was carried out by another person, and
(b) the landholder did not cause or permit the other person
to carry out the activity.
This section does not prevent proceedings being taken against
the person who actually carried out the activity.
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Schedule 3 Amendment of other threatened species legislation
159B Causing or permitting certain harming and picking offences
A person who causes or permits, by act or omission, another
person to commit an offence under section 98 or a provision
of Part 8A is guilty of an offence under the provision and is
liable on conviction to the same penalty applicable to an
offence under that provision.
[10] Section 160 Penalty notices for certain offences
Omit "(not exceeding 5 penalty units)" from section 160 (6) (b).
[11] Section 164 Powers of entry and seizure
Omit "The Director-General or any person duly authorised by the
Director-General in that behalf" from section 164 (1).
Insert instead "An authorised officer".
[12] Section 164 (2) (c)
Insert "with the permission of the occupier or" after "except".
[13] Section 164 (5)
Omit the words before paragraph (a).
Insert instead:
An authorised officer or a police officer may apply to an
authorised justice for a search warrant if the authorised officer
or police officer believes on reasonable grounds:
[14] Section 165 Persons to deliver up fauna etc when required
Omit "the Director-General, or any person duly authorised by the
Director-General in that behalf," from section 165 (1).
Insert instead "an authorised officer".
[15] Section 167 Disposal of fauna and perishable goods when seized
or delivered up
Omit "the Director-General or an officer of the Service duly authorised by
the Director-General in that behalf" from section 167 (1).
Insert instead "an authorised officer".
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Amendment of other threatened species legislation Schedule 3
[16] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Threatened Species Legislation Amendment Act 2004, to the
extent that it amends this Act
[17] Schedule 3
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Threatened Species Legislation
Amendment Act 2004
44 Authorised officers
(1) A person who is duly authorised for the purposes of section
164 or 165 immediately before the commencement of section
156B is, on that commencement taken to have been appointed
as an authorised officer under that section.
(2) The functions conferred on an authorised officer by section
156B extend to matters arising before the commencement of
that section.
3.2 National Parks and Wildlife Regulation 2002
Clause 94 Evidence of authority
Omit clause 94 (1). Insert instead:
(1) For the purposes of sections 164 and 165 of the Act, the
prescribed evidence of a person's authority is:
(a) a written instrument of authority signed by the Director-
General that identifies the person so authorised (unless
the person has been provided with an identification card
as referred to in paragraph (b)), or
(b) the identification card provided to the person in respect
of the person's appointment as an authorised officer
under section 189 of the Protection of the Environment
Operations Act 1997 (as applying under section 156B
of the Act).
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Schedule 3 Amendment of other threatened species legislation
3.3 Native Vegetation Act 2003 No 103
Section 14 Granting of development consent
Insert after section 14 (3):
(4) If the clearing of any native vegetation has the benefit of
biodiversity certification under Division 4 of Part 7 of the
Threatened Species Conservation Act 1995 and also the
benefit of biodiversity certification under Part 7A of the
Fisheries Management Act 1994:
(a) an application for development consent for clearing is
not required to be accompanied by a species impact
statement or statements (as would otherwise be
required under section 78A of the EPA Act), and
(b) the Minister is not required to consult with the Minister
administering the Threatened Species Conservation Act
1995 and the Minister administering the Fisheries
Management Act 1994 (as would otherwise be required
under section 79B of the EPA Act).
3.4 Natural Resources Commission Act 2003 No 102
Section 16A
Insert after section 16:
16A Assistance from Scientific Committee
The Commission may seek and obtain the advice of:
(a) the Scientific Committee under the Threatened Species
Conservation Act 1995 on matters of a scientific nature
relating to threatened species, populations and
communities, such as the setting of state-wide and
regional standards or targets for biodiversity
conservation, and
(b) the Biological Diversity Advisory Council under that
Act on matters of biological diversity, and
(c) the Social and Economic Advisory Council under that
Act on matters relating to the social and economic
impact of natural resource management.
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Amendment of other threatened species legislation Schedule 3
3.5 Threatened Species Conservation Amendment Act 2002
No 78
[1] Schedule 1 [2]
Omit the item.
[2] Schedule 1 [7]
Omit the item.
[3] Schedule 1 [10]
Omit the item.
[4] Schedule 1 [18]
Omit the item.
[5] Schedule 1 [80]
Omit the item.
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