New South Wales Consolidated Acts

NATIONAL PARKS AND WILDLIFE ACT 1974 - SECT 117

117 Restriction on picking or possession of native plant

(1) A person shall not pick or have in the person’s possession a protected native plant.

Maximum penalty:

(a) 100 penalty units and an additional 10 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, or

(b) imprisonment for 6 months,

or both.

(2) Without affecting the operation of section 57 or 71, subsection (1) does not apply in relation to the picking or possession of a protected native plant in a nature reserve or wildlife refuge or in lands reserved or dedicated under Part 4A by an Aboriginal owner on whose behalf the lands are vested in an Aboriginal Land Council or Councils under that Part or any other Aboriginal person who has the consent of the Aboriginal owner board members for the lands for purposes referred to in section 57 (7).

(3) A person shall not be convicted of an offence arising under subsection (1) if the person proves that:

(a) the protected native plant was grown upon private land and was picked by or with the consent of the owner, lessee or occupier of that land, or

(a1) the act constituting the offence was authorised by, and done in accordance with, a conservation agreement, or

(a2) the act constituting the offence was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995 , or

(b) the protected native plant was picked by the person:

(i) under and in accordance with or by virtue of the authority conferred by a licence issued under section 131 or 132C or a licence issued under the Forestry Act 1916 , or

(ia) under and in accordance with or by virtue of the authority conferred by a licence issued under Part 6 of the Threatened Species Conservation Act 1995 , or

(ii) in pursuance of a duty imposed on the person by or under any Act,

or was in the person’s possession after having been so picked, or

(c) the protected native plant was in the person’s possession in accordance with a licence issued under section 132A, or

(d) the protected native plant that was picked or in the person’s possession was cultivated by the person as a hobby and not for commercial purposes or was cultivated by another person as a hobby and not for commercial purposes, or

(e) the protected native plant was obtained from a person who was authorised to grow and sell it by a licence issued under section 132.

(4) In any prosecution for an offence arising under subsection (1), proof that a protected native plant was found in the possession of the defendant shall be prima facie evidence that the defendant picked the native plant or had the native plant in the defendant’s possession in contravention of this section and the onus of proof to the contrary shall be upon the defendant.

(5) The regulations may make provision for or with respect to exempting, subject to the prescribed conditions and restrictions (if any), any person or class or description of persons from the provisions of subsection (1).

(6) A reference in this section to a person’s having a protected native plant in the person’s possession includes a reference to the person’s having a protected native plant in a vehicle, building, lodging, apartment, field or other place whether belonging to or occupied by the person, and whether the plant is then had or placed for the person’s own use or the use of another.