Threatened Species Legislation
Amendment Bill 2004

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Threatened Species Conservation Act
1995 (the TS Act), the Fisheries Management Act 1994 and various other
threatened species legislation as follows:

(a) Provision will be made for the biodiversity certification by the Minister of
the native vegetation reform package, and of environmental planning
instruments (EPIs) that seek to promote conservation of threatened
species. The Minister must also take likely social and economic
consequences and certain other factors into account in deciding whether to
confer biodiversity certification on an EPI.

(b) While biodiversity certification of the native vegetation reform package is
in force, land within the area of operations of a catchment management
authority has the benefit of that certification. Clearing of native vegetation
authorised by a property vegetation plan will not need to be licensed under
provisions of the National Parks and Wildlife Act 1974 (the NPW Act) that
prevent harm to threatened species. The obtaining of development consent
for the clearing of native vegetation on the land will not require
preparation of a species impact statement or consultation between
Ministers.

(c) When an EPI has biodiversity certification, development or an activity
under the EPI will be deemed not likely to significantly affect threatened
species for the purposes of Parts 4 and 5 of the Environmental Planning
and Assessment Act 1979 (the EPA Act), thereby removing the need to
address the test of significance for threatened species and the need for
preparation of a species impact statement.

(d) Existing exemptions in respect of routine agricultural activities will be
replaced by provisions that adopt exemptions for routine agricultural
management activities that parallel exemptions under the Native
Vegetation Act 2003 (the NV Act). The exemption provisions will be
extended to operate as a defence to the offence of harming protected fauna
(not just threatened fauna, as at present). The new provisions will include
regulation making powers to extend, vary or limit these exemptions.

(e) An additional regulation making power will be inserted in the TS Act to
authorise the making of regulations to deem development or an activity to
constitute, or not constitute, development or an activity that is likely to
significantly affect threatened species. The regulations will operate for the
purposes of Part 6 (Licensing) of the TS Act and Parts 4 and 5 of the EPA
Act.

(f) The existing statutory priorities for the preparation of recovery plans and
threat abatement plans will be replaced with provisions for the
Director-General to prepare and adopt a Threatened Species Priorities
Action Statement, which will establish priorities for the recovery of
threatened species and for threat abatement for key threatening processes.

Recovery plans and threat abatement plans will be required to be prepared
in accordance with the priorities established by a Priorities Action
Statement.

(g) Various amendments will be made to the procedures for nomination and
listing of threatened species, including amendments to achieve the
following:

        (i) The Minister will be able to refer a proposed final listing
determination by the Scientific Committee back to the Committee
for further consideration for reasons of a scientific nature.

        (ii) The Scientific Committee will be required to consider and
determine listing proposals by reference to criteria prescribed by the
regulations and to reference the relevant criteria in its reasons for a
determination.

        (iii) The validity of a final determination will not be open to challenge
on the ground that statutory timeframes were not met.

        (iv) A legal challenge to the validity of a final determination will not be
permitted more than 3 months after the final determination is
notified.

        (v) The Natural Resources Commission (NRC) will be able to refer a
species to the Scientific Committee for a listing determination.

        (vi) The NRC and the Minister will be able to give advice and make
recommendations to the Scientific Committee as to priorities in the
consideration of nominations for listing.

        (vii) The NRC will be authorised to obtain the advice of the Scientific
Committee on matters of a scientific nature.

(h) An additional category of “critically endangered” will be established for
listing of species and ecological communities.

        (i) The nomination and listing provisions of the Fisheries Management Act
1994 will be amended for greater consistency with the procedures under
the TS Act (in particular so that the Schedules of threatened species will
be amended by the Fisheries Scientific Committee rather than by the
Minister as at present).

(j) A Threatened Species Social and Economic Advisory Council will be
established to advise the Minister, the Director-General and the NRC on
likely social and economic impacts of listing determinations and related
matters.

(k) The existing Biological Diversity Advisory Council will be re-established
with an expert (rather than stakeholder) membership, and altered functions
with respect to advising the Minister, the Director-General and the NRC
on likely impacts on biological diversity resulting from listing decisions,
and related matters.

(l) Investigative powers of authorised officers under Chapter 7 of the
Protection of the Environment Operations Act 1997 will be conferred on
authorised officers under the NPW Act for the purposes of functions under
that Act, the Threatened Species Conservation Act 1995, the Wilderness
Act 1987 and the Marine Parks Act 1997.

(m) Amendments will be made to create a presumption that a person who
causes damage to the habitat of a threatened species knew that the land
concerned was habitat of that kind if the person did not obtain required
development consent or approval under Part 4 or 5 of the EPA Act or
failed to comply with such a consent or approval.

(n) The NPW Act will be amended to provide that, for purposes of offences
concerning harm and threats to protected fauna or threatened species, the
landholder of the land concerned is presumed to have carried out the
offending activity unless it was carried out by some other person and the
landholder did not cause or permit it to be carried out. A further provision
is included to create an offence of causing or permitting an act or omission
that constitutes such an offence.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation with the exception of specified amendments,
which commence on the date of assent.

Clause 3 is a formal provision that gives effect to the amendments to the
Threatened Species Conservation Act 1995, the Fisheries Management Act 1994
and other threatened species legislation set out in Schedules 1–3.

Schedules 1–3 contain the amendments described in the Overview.

Schedule 1 Amendment of Threatened Species
Conservation Act 1995 No 101
Schedule 1 [64] and [65] make the amendments referred to in paragraphs (a),

(b) and (c) of the Overview.

Schedule 1 [63] makes the amendment referred to in paragraph (e) of the
Overview.

Schedule 1 [22], [26], [32]–[34], [39], [55] and [57]–[64] make the
amendments referred to in paragraph (f) of the Overview.

Schedule 1 [20], [23], [25], [35], [37], [47] and [69] make the amendments
referred to in paragraph (g) of the Overview.

Schedule 1 [4]–[16], [18], [19], [21], [24], [30], [38], [40]–[46], [48]–[54], [56],
[68] and [73]–[76] make the amendments referred to in paragraph (h) of the
Overview.

Schedule 1 [70] and [71] make the amendments referred to in paragraphs (j)
and (k) of the Overview.

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Explanatory note page 5

Threatened Species Legislation Amendment Bill 2004
Explanatory note
Schedule 1 [17], [29], [31] and [36] makes amendments to the grounds for
listing of threatened species, populations and ecological communities, and
provides for listing decisions to be made in accordance with, and for reasons for
decisions to reference, criteria prescribed by the regulations, for consistency
with parallel provisions of Commonwealth legislation.

Schedule 1 [77] and [78] enact savings and transitional provisions.

Schedule 1 [1]–[3] and [72] make amendments that are minor, ancillary or
consequential on other amendments made by Schedule 1.

Schedule 2 Amendment of Fisheries Management
Act 1994 No 38
Schedule 2 [27] and [42] make the amendments referred to in paragraphs (a),

(b) and (c) of the Overview.

Schedule 2 [28] and [29] make the amendments referred to in paragraph (d) of
the Overview.

Schedule 2 [39] makes the amendment referred to in paragraph (e) of the
Overview.

Schedule 2 [16], [30], [32], [34]–[36], [38] and [44] make the amendments
referred to in paragraph (f) of the Overview.

Schedule 2 [7], [9], [10], [12], [13], [15], [17]–[19], [21]–[23], [33], [37], [41]
and [43] make the amendments referred to in paragraphs (g) and (i) of the
Overview.

Schedule 2 [2]–[6], [8], [14], [20], [24], [25], [31], [40] and [45]–[47] make the
amendments referred to in paragraph (h) of the Overview.

Schedule 2 [26] makes the amendment referred to in paragraph (m) of the
Overview.

Schedule 2 [11] makes amendments to the grounds for listing of threatened
species, populations and ecological communities, and provides for listing
decisions to be made in accordance with, and for reasons for decisions to
reference, criteria prescribed by the regulations, for consistency with parallel
provisions of Commonwealth legislation.

Schedule 2 [48] and [49] enact savings and transitional provisions.

Schedule 2 [1] makes a consequential amendment.

Schedule 3 Amendment of other threatened species
legislation
Schedule 3.1 [1], [8] and [10]–[15] and 3.2 make the amendments referred to
in paragraph (l) of the Overview.

Schedule 3.1 [3]–[5] make the amendments referred to in paragraph (b) of the
Overview.

Schedule 3.1 [7] makes the amendment referred to in paragraph (d) of the
Overview.

Schedule 3.1 [6] makes the amendment referred to in paragraph (m) of the
Overview.

Schedule 3.1 [9] makes the amendment referred to in paragraph (n) of the
Overview.

Schedule 3.1 [16] and [17] enact savings and transitional provisions.

Schedule 3.3 makes an amendment referred to in paragraph (b) of the Overview.

Schedule 3.1 [2], 3.4 and 3.5 make minor or consequential amendments.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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