New South Wales: Biodiversity Conservation Act 2016 (NSW)

Biodiversity Conservation Act 2016 No 63 An Act relating to the conservation of biodiversity; and to repeal the Threatened Species Conservation Act 1995, the Nature Conservation Trust Act 2001 and the animal and plant provisions of the National Parks and Wildlife Act 1974. Part 1 Preliminary 1.1 Name of Act This Act is the Biodiversity Conservation Act 2016. 1.2 Commencement This Act commences on a day or days to be appointed by proclamation. 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular— (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and (i) to support and guide prioritised and strategic investment in biodiversity conservation, and (j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and (l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and (m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and (n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and (o) to make expert advice and knowledge available to assist the Minister in the administration of this Act. 1.4 Application of Act to terrestrial environment This Act applies in relation to animals and plants and not (unless otherwise provided) in relation to fish and marine vegetation. Note. The Fisheries Management Act 1994 contains provisions in relation to fish and marine vegetation. 1.5 Biodiversity and biodiversity values for purposes of Act (1) For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems. (2) For the purposes of this Act, biodiversity values are the following biodiversity values— (a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state, (b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site, (c) biodiversity values, or biodiversity-related values, prescribed by the regulations. 1.6 Definitions (1) In this Act— accredited person, in relation to the preparation of biodiversity assessment reports, means a person accredited under section 6.10 to prepare those reports in accordance with the biodiversity assessment method. animal means any animal, whether vertebrate or invertebrate and in any stage of biological development, but does not include— (a) humans, or (b) fish within the meaning of the Fisheries Management Act 1994. Note. Some types of fish may be included in the definition of animal and some types of animals may be included in the definition of fish. See section 14.7. biodiversity and biodiversity values—see section 1.5. biodiversity assessment method means the biodiversity assessment method established under Part 6. biodiversity assessment report means a biodiversity stewardship site assessment report, a biodiversity development assessment report or a biodiversity certification assessment report prepared by an accredited person. biodiversity certification means biodiversity certification conferred on land under Part 8 and biodiversity certified land means land on which biodiversity certification has been conferred and is in force under Part 8. biodiversity conservation licence means a biodiversity conservation licence issued under Division 3 of Part 2 and in force. Biodiversity Conservation Trust or Trust means the Biodiversity Conservation Trust of New South Wales established by Part 10. biodiversity credit means a biodiversity credit created by (and in accordance with) a biodiversity stewardship agreement. biodiversity offsets scheme—see section 6.2. biodiversity stewardship agreement means a biodiversity stewardship agreement made under Division 2 of Part 5. Biodiversity Stewardship Payments Fund means the Biodiversity Stewardship Payments Fund established by Division 7 of Part 6. biodiversity stewardship site means the land that is designated by a biodiversity stewardship agreement to be a biodiversity stewardship site for the purposes of this Act. Crown land means Crown land within the meaning of the Crown Land Management Act 2016. damage habitat includes damage caused by— (a) removing or relocating any part of the habitat, and (b) activities that prevent the continued use of the habitat by animals. declared area of outstanding biodiversity value means an area declared under Part 3. development has the same meaning as in the Environmental Planning and Assessment Act 1979. ecological community means an assemblage of species occupying a particular area. Environment Agency Head means the Chief Executive of the Office of Environment and Heritage. function includes a power, authority or duty, and exercise a function includes perform a duty. habitat includes— (a) an area periodically or occasionally occupied by a species or ecological community, and (b) the biotic and abiotic components of an area. harm an animal includes kill, injure or capture the animal, but does not include harm by changing the habitat of the animal, and attempt to harm an animal includes hunting or pursuing, or using anything, for the purpose of harming the animal. key threatening process means a threatening process listed in Schedule 4. landholder means a person who is the owner of land or who, whether by reason of ownership or otherwise, is in lawful occupation or possession, or has lawful management or control, of land. management action for a biodiversity stewardship site, means an action (or refraining from an action) on the site in respect of which a biodiversity credit may be created. marine vegetation means mangroves, seagrasses or any other species of plant that at any time in its life cycle must inhabit water (other than fresh water). mining or petroleum authority means an authority, claim, licence or title (however described) under the Mining Act 1992 or the Petroleum (Onshore) Act 1991. native vegetation and clearing native vegetation have the same meanings as in Part 5A of the Local Land Services Act 2013. Note. Under that Part of that Act, the clearing of dead or non-native plants on certain vulnerable land is taken to be the clearing of native vegetation. native vegetation legislation means any of the following provisions and any regulations or other instruments or requirements issued or made under those provisions— (a) Part 5A (Land management (native vegetation)) of, and Schedule 5A to, the Local Land Services Act 2013, (b) Part 5B (Private native forestry) of the Local Land Services Act 2013, (c) Part 5A (Forest agreements) and Part 5B (Integrated forestry operations approvals) of the Forestry Act 2012. native vegetation offence means any offence under the native vegetation legislation. owner of land includes— (a) every person who, either at law or in equity— (i) is entitled to the land for any estate of freehold in possession, or (ii) is a person to whom the Crown has lawfully contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to the alienation of lands of the Crown, or (iii) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits in respect of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and (b) a person who leases land under the Crown Land Management Act 2016, and (c) any other person who, under the regulations, is taken to be the owner of the land, but (unless the regulations otherwise provide) does not include a beneficiary of a trust relating to the land. pick a plant includes gather, take, cut, remove from the ground, destroy, poison, crush or injure the plant or any part of the plant. plant means any plant, whether vascular or non-vascular and in any stage of biological development, and includes fungi and lichens, but does not include marine vegetation. Note. Some types of marine vegetation may be included in the definition of plant and some types of plants may be included in the definition of marine vegetation. See section 14.7. private land conservation agreement means a biodiversity stewardship agreement, a conservation agreement or a wildlife refuge agreement under Part 5. protected animal means an animal of a species listed or referred to in Schedule 5. Note. Some protected animals may also be threatened species of animals, but not all threatened species of animals are protected animals. protected plant means a plant of a species listed or referred to in Schedule 6. Note. Some protected plants may also be threatened species of plants, but not all threatened species of plants are protected plants. public authority means any public or local authority constituted by or under an Act, a Public Service agency, a NSW Government agency or a State owned corporation, and includes a person exercising any function on behalf of the authority, agency or corporation and any person or body declared by the regulations to be a public authority. species includes— (a) a defined subspecies, and (b) a taxon below a subspecies, and (c) a recognisable variant of a subspecies or taxon, and (d) a population of a particular species (being a group of organisms, all of the same species, occupying a particular area). threatened ecological community means a critically endangered ecological community, an endangered ecological community or a vulnerable ecological community listed in Schedule 2. threatened species means a critically endangered species, an endangered species or a vulnerable species listed in Schedule 1. Threatened Species Scientific Committee or Scientific Committee means the Threatened Species Scientific Committee established by Division 7 of Part 4. threatening process means a process that threatens, or that may threaten, the survival or evolutionary development of species or ecological communities. Tier 1, Tier 2, Tier 3, Tier 4 or Tier 5 monetary penalty, in relation to an offence, indicates the maximum monetary penalty that a court may impose for the offence—see section 13.1 for the relevant maximum amounts. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act, a reference to a person entitled to the benefit of a covenant includes, in the case of a covenant imposed under section 88D or 88E of the Conveyancing Act 1919, a reference to a prescribed authority (within the meaning of those sections) or a person entitled to exercise, on behalf of the Crown, the functions of a prescribed authority under those sections. (3) Notes included in this Act do not form part of this Act. Part 2 Protection of animals and plants Division 1 Offences Notes. 1 Division 2 provides defences in any proceedings for an offence under this Division. 2 For civil enforcement—see Part 13. 2.1 Harming animals (1) A person who harms or attempts to harm— (a) an animal that is of a threatened species, or (b) an animal that is part of a threatened ecological community, or (c) a protected animal, is guilty of an offence. Maximum penalty (includes additional penalty for each animal)— (a) in the case of an animal that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or (c) in any other case—Tier 4 monetary penalty. (2) If the act that harms an animal is the clearing of native vegetation by or on behalf of a landholder on category 1-exempt land under Part 5A of the Local Land Services Act 2013, the person does not commit an offence under this section unless it is established that the person knew that the act would be likely to harm the animal. 2.2 Picking plants (1) A person who picks— (a) a plant that is of a threatened species, or (b) a plant that is part of a threatened ecological community, or (c) a protected plant, is guilty of an offence. Maximum penalty (includes additional penalty for each plant)— (a) in the case of a plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of a plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or (c) in any other case—Tier 4 monetary penalty. (2) In any prosecution for an offence under this section, proof that a plant was found in the possession of the person charged is prima facie evidence that the person picked the plant. 2.3 Damaging declared areas of outstanding biodiversity value A person who damages a declared area of outstanding biodiversity value is guilty of an offence. Maximum penalty—Tier 1 monetary penalty or imprisonment for 2 years, or both. 2.4 Damaging habitat of threatened species or ecological community (1) A person— (a) who damages any habitat of a threatened species or threatened ecological community, and (b) who knows that it is the habitat of any such species or community, is guilty of an offence. Maximum penalty—Tier 1 monetary penalty or imprisonment for 2 years, or both. (2) A person who damages habitat of a threatened species or threatened ecological community in the course of carrying out any unlawful activity is taken to know that it was habitat of that kind unless the person establishes that the person did not know that it was habitat of that kind. 2.5 Dealing in animals or plants (1) A person who deals in or attempts to deal in— (a) an animal or plant that is of a threatened species, or (b) an animal or plant that is part of a threatened ecological community, or (c) a protected animal or protected plant, is guilty of an offence. Maximum penalty (includes additional penalty for each animal or plant)— (a) in the case of an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or (c) in any other case—Tier 4 monetary penalty. (2) For the purposes of this section, a person deals in animals or plants if the person— (a) buys or sells the animals or plants, or (b) trades in animals or plants, or (c) imports into, or exports from, New South Wales the animals or plants, or (d) possesses the animals or plants. (3) This section applies to an animal or plant, whether or not it is a living animal or plant, and extends to a part of an animal or plant. (4) The regulations may exclude a dealing of a kind described in the regulations from the application of this section. (5) In this section— buy, sell, trade, import or export includes— (a) advertise or hold out as being prepared to buy, sell, trade, import or export animals or plants, and (b) deliver or receive animals or plants for the purpose of their purchase, sale, trade, import or export. possess has the same meaning as in section 7 of the Crimes Act 1900. 2.6 Liberating animals (1) A person who, without authority, liberates in New South Wales any animal (other than a captured protected animal) is guilty of an offence. (2) A person who, without authority, liberates a captured protected animal in a place other than the place of its capture is guilty of an offence. (3) In this section, without authority means without the authority conferred by a biodiversity conservation licence under Division 3 or by the regulations. Maximum penalty—Tier 3 monetary penalty. 2.7 Protection of marine mammals (1) In this section— marine mammal means an animal of the order of Cetacea, Sirenia or Pinnipedia. (2) The regulations may make provision for or with respect to the protection, care or preservation of marine mammals, including prohibiting or regulating— (a) approaching a marine mammal any closer than the distance prescribed by the regulations, or (b) interfering with or doing any other thing in relation to a marine mammal. (3) Any such regulation may impose a Tier 2 monetary penalty for an offence against any such regulation, and may impose a Tier 1 monetary penalty or imprisonment for 2 years, or both, for any such offence if the offence is committed in the course of commercial operations relating to the killing of marine mammals. (4) Any such regulation may provide that any action prohibited by the regulation in relation to marine mammals constitutes harming a marine mammal for the purposes of this Act. (5) A biodiversity conservation licence is not to be issued under Division 3 to authorise a person to harm or obtain a marine mammal for exhibition or other purposes unless the person issuing the licence is satisfied that it is necessary for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals. Division 2 Defences 2.8 Acts authorised under other legislation etc (1) It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence— (a) Planning approval etc The act was necessary 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) development that is exempt development under that Act, or Note. Section 76(3) of that Act provides that development carried out in a declared area of outstanding biodiversity value or in a wilderness area is not authorised exempt development. (iii) an activity by a determining authority within the meaning of Part 5 of that Act that was carried out after compliance with that Part, or (iv) an activity authorised by an approval granted by a determining authority within the meaning of Part 5 of that Act after compliance with that Part, or (v) an approved transitional Part 3A project under Schedule 6A to that Act, or (vi) State significant infrastructure approved under that Act, Division 5.2. (b) Authorised clearing of native vegetation—rural areas The act was clearing native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013), other than any such clearing by a person— (i) that harms an animal and that the person knew would be likely to harm the animal, or (ii) that damages the habitat of an animal that is (or is part of) a threatened species or threatened ecological community and that the person knew would be likely to damage that habitat. The act was clearing native vegetation on category 2-regulated land (within the meaning of Part 5A of the Local Land Services Act 2013)— (i) that was an allowable activity authorised under Division 4 of Part 5A of the Local Land Services Act 2013, or (ii) that was authorised by a land management (native vegetation) code under Division 5 of that Part, or (iii) that was authorised by an approval under Division 6 of that Part, or (iv) that was authorised or required under Division 5 of that Part in relation to a set aside area under that Division. The defences under this paragraph do not apply if the act was the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies. (c) Authorised removal of trees etc—urban areas The act was picking plants and was authorised by a permit or other authorisation under an environmental planning instrument made under section 26(4) of the Environmental Planning and Assessment Act 1979. (d) Rural fires authorisation The act was— (i) an emergency fire fighting act or emergency bush fire hazard reduction work within the meaning of the Rural Fires Act 1997, or (ii) bush fire hazard reduction work to which section 100C(4) of the Rural Fires Act 1997 applies or vegetation clearing work under Part 4, Division 9 of that Act. (e) Electricity network operator bush fire risk mitigation direction on private bush fire prone lands The act was picking plants and was required to be done to give effect to a direction of a network operator under Division 2A of Part 5 of the Electricity Supply Act 1995. (f) State emergency authorisation The act was authorised by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property. (g) Plantation operations authorisation The act was the carrying out of a plantation operation on an authorised plantation in accordance with the Plantations and Reafforestation Act 1999, the conditions of the authorisation and the provisions of the Plantations and Reafforestation Code applying to the plantation. (h) Forestry operations authorisation The act was— (i) the carrying out of a forestry operation in a State forest or other Crown-timber land to which an integrated forestry operations approval under Part 5B of the Forestry Act 2012 applies, being a forestry operation that is carried out in accordance with the approval, or (ii) the carrying out of a forestry operation that is authorised by a private native forestry plan under Part 5B of the Local Land Services Act 2013, being a forestry operation that is carried out in accordance with the plan and the applicable private native forestry code of practice. Note. See also section 44(7) and (8) of the Forestry Act 2012, as inserted by Schedule 11 to this Act. (i) Private land conservation agreements The act was authorised by a private land conservation agreement (including a conservation agreement under the National Parks and Wildlife Act 1974). (j) Aboriginal land The act was picking or possessing protected plants on lands reserved or dedicated under Part 4A of the National Parks and Wildlife Act 1974 by an Aboriginal owner on whose behalf the lands are vested in an Aboriginal Land Council under that Part or any other Aboriginal person who has the consent to do so of the relevant Aboriginal owner board members (within the meaning of that Act). (k) Domestic purposes of Aboriginal persons The act was— (i) harming, attempting to harm or possessing protected animals, or (ii) picking or possessing protected plants (but only to the extent of gathering or harvesting fruit, flowers or other parts of the plants), by an Aboriginal person (or any dependant of an Aboriginal person) for his or her own domestic purposes. Any such act is subject to any exemption or requirement provided by the regulations. (l) Non-commercial hobby activities The act was not done for commercial purposes and was picking plants that were cultivated by the person as a hobby or were cultivated by another person as a hobby. (m) Plants obtained from commercial plant growers The act was picking plants that were obtained from a person who was authorised to grow and sell them by a licence issued under this Act. (n) Joint management agreements The act was authorised by a joint management agreement entered into in accordance with regulations between the Minister and one or more public authorities for the management or control of any action that is jeopardising the survival of a threatened species or threatened ecological community. (o) Officials enforcing Act The act was done by a person engaged in the administration of this Act for the purposes only of determining whether this Act or the regulations have been contravened or of exercising any other official function of the person. (2) In the case of an act done in a declared area of outstanding biodiversity value the defences under subsection (1)(b), (c), (h), (k), (l) and (m) do not apply. Note. Other Acts authorise particular activities despite harm to animals or picking plants eg section 6A of the Game and Feral Animal Control Act 2002 with respect to hunting game animals authorised by a game hunting licence, or native game birds under a native game bird management licence. 2.9 Acts authorised by regulations (including codes of practice) (1) The regulations may make provision for additional defences to a prosecution for an offence under Division 1, including by reference to acts done in accordance with codes of practice made or adopted under subsection (2). (2) The regulations may provide for the making and publication by the Minister of codes of practice relating to animals or plants or for the adoption of other codes of practice relating to animals or plants. 2.10 Acts authorised by biodiversity conservation licence It is a defence to a prosecution for an offence under Division 1 if the person charged establishes that the act that constitutes the offence was authorised by, and done in accordance with, a biodiversity conservation licence under Division 3. Division 3 Biodiversity conservation licences 2.11 Licences to do acts that would otherwise constitute offence The Environment Agency Head may grant a licence (a biodiversity conservation licence) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act. 2.12 Applications for licences (1) An application for a biodiversity conservation licence— (a) is to be made to the Environment Agency Head in the form approved by that Agency Head and containing the information required by that Agency Head, and (b) is to be accompanied by the standard application fee prescribed by the regulations. (2) If the Environment Agency Head considers that the cost of determining a particular application for a biodiversity conservation licence exceeds the standard application fee, that Agency Head may require the applicant to pay an additional amount for the determination of the application if the additional amount is calculated in accordance with a methodology published by the Environment Agency Head and does not exceed the additional reasonable costs of determining that application. Note. See section 14.6 with respect to recovery, waiver or refund of fees. (3) The Environment Agency Head may require the applicant for a biodiversity conservation licence to provide such additional information as the Environment Agency Head may require to determine the application. 2.13 Grant or refusal and variation of licence (1) If an application for a biodiversity conservation licence is duly made, the Environment Agency Head may— (a) grant the licence, or (b) refuse to grant the licence. (2) A biodiversity conservation licence may be granted for the period specified in the licence. (3) The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, vary the licence. A licence may be varied on the application of the holder of the licence or on the initiative of the Environment Agency Head. (4) To avoid doubt, the Environment Agency Head is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting or varying a biodiversity conservation licence. (5) The Environment Agency Head may refuse to grant a biodiversity conservation licence if the Agency Head considers that the application for the licence relates to a matter that should be dealt with by an application for an approval to clear native vegetation under Division 6 of Part 5A of the Local Land Services Act 2013. 2.14 Conditions of licences (1) A biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations. (2) The conditions that may be imposed on a biodiversity conservation licence include— (a) minimum standards relating to the humane treatment of animals (including minimum standards relating to the accommodation, care, rescue, rehabilitation, release or killing of animals), or (b) the places at which animals are to be kept, or (c) the keeping of records, or (d) conditions on any other matter that the Environment Agency Head considers appropriate in the circumstances. (3) The variation of a biodiversity conservation licence under section 2.13 includes the addition, removal or amendment of a condition of the licence (other than a condition prescribed by the regulations). (4) A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence. Maximum penalty— (a) in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or (c) in any other case—Tier 4 monetary penalty. (5) A defence to a prosecution for an offence under Division 1 extends to a prosecution for an offence under subsection (4). (6) A person cannot be convicted of both an offence under subsection (4) and an offence under Division 1 in respect of the same act or omission because the defence for an offence under Division 1 provided by the biodiversity conservation licence is not available as a result of the contravention of the condition of the licence. 2.15 Cancellation or suspension of licences The Environment Agency Head may, by notice served on the holder of a biodiversity conservation licence, suspend or cancel the licence for any reason the Environment Agency Head thinks appropriate. 2.16 Reasons for, and appeals against, licensing decisions (1) In this section— licensing decision means a decision of the Environment Agency Head— (a) to refuse an application for a biodiversity conservation licence, or (b) to grant a biodiversity conservation licence subject to conditions, or (c) to vary a biodiversity conservation licence, or (d) to suspend or cancel a biodiversity conservation licence. (2) The Environment Agency Head is required to provide a written statement of reasons for a licensing decision if the applicant or holder of the licence makes a written request for the statement of reasons. (3) An applicant for, or the holder of, a biodiversity conservation licence may appeal to the Land and Environment Court against a licensing decision. (4) The appeal is to be made within the time prescribed by the regulations and in the manner prescribed by the rules of the Court. (5) The regulations may provide that a failure to determine an application for a biodiversity licence within the period provided by the regulations is taken to be a refusal of the application for the purposes of this section. (6) The lodging of an appeal does not, except to the extent the Court otherwise directs in relation to the appeal, operate to stay the decision appealed against. 2.17 Regulations relating to licences The regulations may make provision for or with respect to biodiversity conservation licences and, in particular, for or with respect to the following— (a) the assessment of applications for licences (including mandatory impact assessment requirements carried out by or on behalf of the applicant), (b) the eligibility of persons to be granted a licence, (c) different classes of licences, (d) the conditions of licences, (e) the obligations of the holders of licences, (f) the accreditation of providers of wildlife rehabilitation and rescue services and the services to which the accreditation relates that are to be taken to be the subject of a biodiversity conservation licence. Division 4 Miscellaneous provisions 2.18 Protected animals (unless excluded) to be property of the Crown (1) In this section— excluded protected animal means— (a) a protected animal that is, at the time of birth, in the lawful possession of any person other than the Crown, or (b) a protected animal imported into New South Wales, or (c) a protected animal that was, before the commencement of the National Parks and Wildlife Act 1974 on 1 January 1975, lawfully taken or in the lawful possession of any person other than the Crown and that had not been liberated before 1 January 1975, or (d) a protected animal of a class prescribed by the regulations for the purposes of this definition. protected animal includes an animal of (or part of) a threatened species or threatened ecological community. (2) A protected animal (other than an excluded protected animal) is, until lawfully captured or killed, deemed to be the property of the Crown. (3) A protected animal is, when liberated in New South Wales, deemed to be the property of the Crown. (4) A protected animal that is deemed by this section to be the property of the Crown does not cease to be the property of the Crown merely because a person other than the Crown— (a) takes possession of it because it is incapable of fending for itself in its natural habitat, or (b) takes or obtains it under and in accordance with a biodiversity conservation licence that declares that any animal so taken or obtained remains the property of the Crown. (5) The progeny of any protected animal that was born at a time when the protected animal was in the possession of a person in the circumstances referred to in subsection (4) is, at the time of birth, deemed to be in the lawful possession of the Crown instead of that person. 2.19 Regulations for the purposes of this Part (1) The regulations may amend or substitute Schedule 5 (Protected animals) or Schedule 6 (Protected plants). (2) The regulations may make provision for or with respect to the regulation or welfare of protected animals and the regulation of protected plants. In particular, the regulations may— (a) regulate the breeding of protected animals, and (b) make provision for or with respect to the registration of persons who deal in protected animals or protected plants and of premises used by those persons, and (c) require the keeping of records by persons who deal in protected animals or protected plants, and (d) make provision for or with respect to the preparation of management plans in relation to any commercial activity that may adversely affect protected animals or protected plants (including provision with respect to tagging of animals or plants that are sold). (3) In this section, protected animal includes an animal of (or part of) a threatened species or threatened ecological community, and protected plant includes a plant of (or part of) a threatened species or threatened ecological community. Part 3 Areas of outstanding biodiversity value 3.1 Declaration of areas of outstanding biodiversity value (1) The Minister may, in accordance with this Part, declare any area in the State to be an area of outstanding biodiversity value. (2) An area is so declared by publication of a notice of the declaration on the NSW legislation website. 3.2 Areas eligible to be declared (1) An area may be declared as an area of outstanding biodiversity value if the Minister is of the opinion that (in accordance with any criteria prescribed by the regulations)— (a) the area is important at a state, national or global scale, and (b) the area makes a significant contribution to the persistence of at least one of the following— (i) multiple species or at least one threatened species or ecological community, (ii) irreplaceable biological distinctiveness, (iii) ecological processes or ecological integrity, (iv) outstanding ecological value for education or scientific research. (2) The declaration of an area may relate to, but is not limited to, protecting threatened species or ecological communities, connectivity, climate refuges and migratory species. 3.3 Procedural requirements before areas declared (1) Before an area is declared to be an area of outstanding biodiversity value— (a) the Environment Agency Head must recommend the declaration of the area, and (b) the Environment Agency Head must notify landholders whose land is within the proposed area, and any public authorities that appear to the Agency Head to exercise functions in relation to land within the proposed area, of the recommendation to declare the area, and (c) the Environment Agency Head must give those landholders and public authorities a reasonable opportunity to make submissions with respect to the recommendation to declare the area, and (d) the public consultation required by Part 9 is to be undertaken in relation to the proposed declaration of the area, and (e) the Environment Agency Head must seek and consider the advice of the Threatened Species Scientific Committee, the Biodiversity Conservation Trust and the Biodiversity Conservation Advisory Panel. (2) The Environment Agency Head may amend or not proceed with a recommendation following consideration of any such advice or any submissions from landholders, public authorities or others. (3) A declaration is not invalid because of any failure to fully comply with this section. 3.4 Requirements following declaration of area (1) After an area is declared to be an area of outstanding biodiversity value— (a) the Environment Agency Head is to notify the making of the declaration to any landholder whose land is within the proposed area and any public authorities that appear to the Agency Head to exercise functions in relation to land within the proposed area, and (b) the Minister is to take reasonable steps to enter into a private land conservation agreement with any landholder whose land is within the proposed area. (2) The Environment Agency Head is to notify any such landholder or public authority of the amendment or revocation of the declaration. 3.5 Amendment or revocation of declaration (1) A declaration of an area of outstanding biodiversity value may be amended or revoked by the Minister by notice published on the NSW legislation website. (2) The declaration of an area is not to be revoked (or amended to remove any part of the area from the declaration) unless the Minister is of the opinion that the area (or part of the area) is not eligible to be declared or that the procedures of this Part for making the declaration were not complied with. (3) The procedure that applies under this Part to the making of a declaration applies to the amendment or revocation of a declaration, except an amendment to correct a minor error or omission or as otherwise provided by the regulations. 3.6 Regulations with respect to declared areas The regulations may make provision for or with respect to— (a) the declaration (or the amendment or revocation of a declaration) of an area of outstanding biodiversity value, or (b) the protection of declared areas of outstanding biodiversity value. Part 4 Threatened species and threatened ecological communities Division 1 Preliminary 4.1 Definition of "listing" species, ecological communities or threatening processes In this Part— listing of species, ecological communities or key threatening processes includes a reference to changing the listing of species, ecological communities or key threatening processes (whether by omitting the listing or by moving the listing from one Schedule to another Schedule or to a different part of a Schedule). Division 2 Listing of species and ecological communities 4.2 Lists of species and ecological communities (1) Schedule 1 contains a list of threatened species of animals and plants for the purposes of this Act, comprising the following— (a) critically endangered species, (b) endangered species, (c) vulnerable species. (2) Schedule 2 contains a list of threatened ecological communities of animals and plants for the purposes of this Act, comprising the following— (a) critically endangered ecological communities, (b) endangered ecological communities, (c) vulnerable ecological communities. (3) Schedule 3 contains a list of extinct species, species extinct in the wild and collapsed ecological communities of animals and plants for the purposes of this Act. 4.3 General eligibility for listing (1) A species is eligible to be listed under this Part as a threatened species, or as part of a threatened ecological community, only if it is, in the opinion of the Scientific Committee— (a) a species of animal that is native to New South Wales or that is known to periodically or occasionally migrate to New South Wales, or (b) a species of plant that is native to New South Wales. (2) An animal or plant is native to New South Wales if it was established in Australia before European settlement and it occurs naturally in New South Wales. Note. The definition of animal in this Act excludes fish and the definition of plant excludes marine vegetation (subject to section 14.7). Listing and protection of threatened species of fish or marine vegetation is dealt with in Part 7A of the Fisheries Management Act 1994. 4.4 Specific eligibility criteria for listing threatened species (1) 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 Australia in the immediate future, as determined in accordance with criteria prescribed by the regulations. (2) 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 Australia 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. (3) 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 Australia 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. (4) If a species is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales. (5) The regulations may make provision in connection with the separate listing of threatened species and populations of those species. 4.5 Specific eligibility criteria for listing threatened 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 Australia 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 Australia 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— (a) it is facing a high risk of extinction in Australia 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. (4) If an ecological community is not eligible to be listed in any category in accordance with this section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with this section on the basis of the risk of extinction in New South Wales. 4.6 Specific eligibility criteria for listing extinct species, species extinct in the wild and collapsed ecological communities (1) A species is eligible to be listed as an extinct species at a particular time if, in the opinion of the Scientific Committee, there is no reasonable doubt that the last member of the species in Australia has died. (2) A species is eligible to be listed as a species extinct in the wild at a particular time if, in the opinion of the Scientific Committee— (a) it is known only to survive in Australia in cultivation, in captivity or as a naturalised population well outside its past range, or (b) it has not been recorded in its known or expected habitat in Australia, despite targeted surveys, over a time frame appropriate, in the opinion of the Scientific Committee, to its life cycle and form. (3) If, in the opinion of the Scientific Committee, a species is extinct or extinct in the wild in New South Wales but not Australia, it is to note that fact in a listing of the species in Schedule 1. (4) An ecological community is eligible to be listed as a collapsed ecological community at a particular time if, in the opinion of the Scientific Committee, all occurrences of the ecological community have moved outside the natural range of spatial and temporal variability in terms of its composition, structure or function. 4.7 Regulations prescribing eligibility criteria for listing A regulation that prescribes criteria for the purposes of this Division is not to be made unless the Minister certifies that— (a) the criteria are based on scientific principles only, and (b) the criteria for listing under a common assessment method agreed between the Commonwealth, States and Territories were given due consideration before the regulation was made. Division 3 Procedure for listing (other than provisional listing) 4.8 Operation of Division (1) This Division sets out the procedure for listing species and ecological communities in Schedule 1, 2 or 3. (2) This Division does not apply to a provisional listing under Division 4. 4.9 Scientific Committee responsible for listing The Scientific Committee is responsible for determining the listing of species and ecological communities. 4.10 Who may initiate listing (1) The Scientific Committee may determine the listing of species and ecological communities on its own initiative. (2) The Scientific Committee may also determine the listing of species and ecological communities— (a) following a request by the Minister, or (b) on a nomination under this Division of any other person, or (c) following an assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories. 4.11 Priority assessment of nominations or other proposals for listing (1) The Scientific Committee is required to prioritise the assessment of the nominations and other proposals for listing species or ecological communities. (2) The regulations may make provision with respect to the prioritisation of assessments. (3) The priorities are to be reviewed by the Scientific Committee at least annually. (4) The priorities determined by the Scientific Committee are to be published on a government website maintained by the Environment Agency Head. 4.12 Nominations for listing (1) A nomination by any person for listing species or ecological communities must— (a) be made in writing to the Scientific Committee, and (b) include any information required by the Scientific Committee. (2) The Scientific Committee may request the person making the nomination to provide additional information about the nomination before it deals with the nomination. (3) The Scientific Committee, with the concurrence of the Environment Agency Head, may provide guidance on the making of nominations, including on the themes for listing classes of animals or plants to fill gaps in current listings. (4) The Scientific Committee is to give notice of a duly made nomination to the Environment Agency Head within 14 days after the nomination is provided to members of the Scientific Committee. (5) The Scientific Committee may consider different nominations about the same subject together. (6) The Scientific Committee may reject a nomination if— (a) the subject of the nomination has already been dealt with, or (b) the nomination is vexatious, or (c) the information required to be included in the nomination, or which is requested by the Scientific Committee, is not included or provided or is not considered to be adequate. (7) If the Scientific Committee rejects a nomination, it is to notify the Environment Agency Head and the person who made the nomination and is to give reasons for the rejection. 4.13 Scientific Committee's preliminary determination (except for proposals by other jurisdictions under common assessment method) (1) The Scientific Committee is to make a preliminary determination as to whether a proposal to list a species or ecological community should be supported or not supported. (2) A preliminary determination is not required in the case of a proposed assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories. (3) As soon as possible after making a preliminary determination, the Scientific Committee must— (a) in a case involving a nomination, notify the person who made the nomination and the Environment Agency Head, and (b) in a case of a proposal raised on its own initiative or in response to a request from the Minister, notify the Minister and the Environment Agency Head, and (c) publish notice of, and invite submissions on, its preliminary determination in accordance with any requirements of the regulations. (4) The Scientific Committee is to consider written submissions duly received by it in accordance with the published notice. 4.14 Proposed assessments by jurisdictions under common assessment method (1) The Scientific Committee is, when dealing with a proposal for listing a species or ecological community, to give due consideration to the assessment criteria and procedures under a common assessment method agreed between the Commonwealth, States and Territories. (2) The Scientific Committee may liaise with relevant agencies and officials of the Commonwealth and other States or Territories in connection with the assessment of proposals for listing under any such common assessment method. (3) The Scientific Committee is not required to re-assess a proposal for listing by the Commonwealth or another State or Territory if it is satisfied that the proposal has been duly assessed under any such common assessment method. 4.15 Scientific Committee's final determination (1) The Scientific Committee must either accept or reject a proposal for listing a species or ecological community and must give reasons for its determination. (2) The reasons for a determination are to include reference to such of the criteria for listing as may be relevant to the determination. (3) The final determination of the Scientific Committee may differ from its preliminary determination on the matter. (4) In a case involving a nomination, the Scientific Committee must make a final determination within 6 months (or, with the approval of the Minister, within a further 2 years) after the closing date for making submissions to the Scientific Committee about its preliminary determination on the matter. (5) Failure to make a final determination within the period required by this section does not affect the validity of the determination. 4.16 Publication of final determination (1) A final determination of the Scientific Committee is made on its publication on the NSW legislation website. (2) On making a final determination, the Scientific Committee must, as soon as practicable— (a) in a case involving a nomination, notify the person who made the nomination of the final determination, and (b) notify the Environment Agency Head of the final determination, and (c) publish notice of, and reasons for, the final determination in accordance with any requirements of the regulations. (3) 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 after the publication of the final determination on the NSW legislation website. 4.17 Revision of Schedule on publication of final determination Schedule 1, 2 or 3 (as the case requires) is amended to give effect to a final determination of the Scientific Committee on the date on which the final determination is published on the NSW legislation website or on such later date provided in the final determination for its commencement. 4.18 Lists to be kept under review The Scientific Committee must, in accordance with the regulations, keep the lists of species and ecological communities under review and must, at least every 5 years, determine whether any changes to the lists are necessary. 4.19 Minor amendments to Schedules (1) The Scientific Committee may make and publish a final determination under this Division to amend the list of species or ecological communities without following the procedure set out in this Division if, in the opinion of the Scientific Committee, the amendment is necessary or desirable for any of the following purposes— (a) to reflect any change in the name of a listed species or a reclassification of a listed species into further species as a result of taxonomic revision, (b) to correct any minor error or omission, (c) to clarify a description of an ecological community (including to reflect new surveys or research information). (2) Any such determination is not to alter the listing status of a particular species or ecological community or the particular area of an ecological community. (3) In this section, a reference to the amendment of a list of species or ecological communities includes a reference to the amendment of a determination referred to in the listing. 4.20 Restriction on releasing certain information relating to listing etc (1) The Minister may, at the request of the Scientific Committee, authorise the Scientific Committee to restrict access to— (a) information provided to the Scientific Committee related to the location of a species or ecological community, or (b) information provided to the Scientific Committee that may identify any individual who made a nomination or submission under this Part in relation to the listing or provisional listing of a species or ecological community. (2) The Minister may authorise the restriction of access to information referred to in subsection (1)(a) if satisfied that it is in the public interest to do so. (3) The Minister may authorise the restriction of access to information referred to in subsection (1)(b) if satisfied that it is necessary to do so to protect the individual concerned from intimidation, harassment, physical threats or other unwarranted reprisals in connection with the making of the nomination or submission. Division 4 Procedure for provisional listing of endangered or critically endangered species on emergency basis 4.21 Operation of Division This Division sets out the procedure for provisionally listing an endangered or critically endangered species on an emergency basis. 4.22 Scientific Committee responsible for provisional listing The Scientific Committee is responsible for determining whether any species should be provisionally listed under this Division. 4.23 Eligibility for provisional listing A species is eligible to be provisionally listed under this Division if, in the opinion of the Scientific Committee— (a) the species— (i) although not previously known to have existed in New South Wales, is believed on current knowledge to be native to New South Wales, or (ii) is subject to an immediate and significant threat of extinction, or (iii) was presumed to be extinct or extinct in the wild but has been rediscovered, and (b) the species is not listed in Schedule 1 as an endangered or critically endangered species. 4.24 Who may initiate provisional listing (1) The Scientific Committee may determine to provisionally list a species under this Division on its own initiative. (2) The Scientific Committee may also determine to provisionally list a species under this Division— (a) following a request by the Minister, or (b) on a nomination under this Division of any other person, or (c) following an assessment for listing by the Commonwealth or another State or Territory under a common assessment method agreed between the Commonwealth, States and Territories. 4.25 Making nomination for provisional listing (1) A nomination by any person for the provisional listing of an endangered or critically endangered species must— (a) be made in writing to the Scientific Committee, and (b) include any information required by the Scientific Committee. (2) The Scientific Committee may request the person making the nomination to provide additional information about the nomination before it deals with the nomination. 4.26 Consideration of nomination for provisional listing by Scientific Committee The provisions of Division 3 relating to the consideration by the Scientific Committee of a nomination for listing apply also to a nomination for the provisional listing of a species under this Division. 4.27 Publication of determination for provisional listing (1) A determination for provisional listing is made by the Scientific Committee on its publication on the NSW legislation website. (2) On making a determination for provisional listing, the Scientific Committee must, as soon as practicable— (a) in a case involving a nomination, notify the person who made the nomination of the determination, and (b) notify the Environment Agency Head of the determination, and (c) publish notice of, and reasons for, the determination in accordance with any requirements of the regulations. 4.28 Effect of publication of determination for provisional listing Schedule 1, 2 or 3 (as the case requires) is amended to give effect to a determination for provisional listing on the date on which the determination is published on the NSW legislation website. The amendment ceases to have effect when the provisional listing ceases to have effect under this Division. 4.29 Scientific Committee to review status of provisionally listed species (1) As soon as practicable after the publication of a determination under this Division, the Scientific Committee must review the status of a provisionally listed species to determine whether or not the species should be listed in Schedule 1 as a threatened species. (2) The requirements of Division 3 relating to the making of preliminary and final determinations for listing apply to the review of a provision