New South Wales Consolidated Acts

FISHERIES MANAGEMENT ACT 1994 - SECT 220ZF

220ZF Defences

(1) It is defence to a prosecution for an offence against this Division if the accused proves that the act or omission constituting the offence:

(a) was authorised by, and was done or omitted in accordance with:

(i) a licence granted under this Part, or

(ii) a Ministerial order or interim order made under Subdivision 1A of Division 6, or

(iii) a permit under section 37, or

(iv) an aquaculture permit, or

(b) was essential for the carrying out of:

(i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 , or

(ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act, if the determining authority has complied with that Part, or

(iii) a project approved under Part 3A of the Environmental Planning and Assessment Act 1979 , or

(iv) State significant infrastructure approved under Part 5.1 of the Environmental Planning and Assessment Act 1979 , or

(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

(c) was authorised by or under the State Emergency and Rescue Management Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or

(d) was a routine fishing activity (unless it was an activity of a kind that the regulations declare is not a routine fishing activity for the purposes of this paragraph), or

(e) was a routine aquacultural activity (unless it was an activity of a kind that the regulations declare is not a routine activity for the purposes of this paragraph), or

(f) is identified in, and carried out in accordance with, a property management plan approved by the Director-General under subsection (4) or by the Director-General of National Parks and Wildlife under section 91 of the Threatened Species Conservation Act 1995 .

(2) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this Part:

(a) this Part prevails (except in relation to a matter referred to in subsection (1) (b) or (c)), and

(b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person’s failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this Part.

(4) The Director-General may, for the purposes of subsection (1) (f), approve of a property management plan for land prepared by a landholder. Any such plan may identify an activity even if it is declared not to be a routine fishing activity or routine aquacultural activity for the purposes of subsection (1) (d) or (e).

(5) This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.

(6) In this section, a "routine fishing activity" means a routine activity carried out in connection with the lawful taking of fish or marine vegetation other than a threatened species, population or ecological community.

(7) A defence that the act or omission constituting the offence was a routine fishing activity or routine aquaculture activity is available in proceedings for an offence against this Division only if the person charged satisfies the court that, on becoming aware of taking any fish of a threatened species, population or ecological community, the person took immediate steps to return the fish to its natural environment with the least possible injury.