Biodiversity Conservation Act 2016

This Act is the Biodiversity Conservation Act 2016.

This Act commences on a day or days to be appointed by proclamation.

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—

to conserve biodiversity at bioregional and State scales, and

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

to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and

to support biodiversity conservation in the context of a changing climate, and

to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and

to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and

to regulate human interactions with wildlife by applying a risk-based approach, and

to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and

to support and guide prioritised and strategic investment in biodiversity conservation, and

to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and

to establish a framework, reflecting the avoid, minimise and offset hierarchy, to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and

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

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

to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and

to make expert advice and knowledge available to assist the Minister in the administration of this Act.

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.

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.

For the purposes of this Act, biodiversity values are the following biodiversity values—

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,

habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

biodiversity values, or biodiversity-related values, prescribed by the regulations.

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—

humans, or

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.

avoid, minimise and offset hierarchy—see section 6.3A.

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—

removing or relocating any part of the habitat, and

activities that prevent the continued use of the habitat by animals.

declared area of outstanding biodiversity value means an area declared under Part 3.

Department means the Department in which this Act is administered.

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 Secretary of the Department.

function includes a power, authority or duty, and exercise a function includes perform a duty.

habitat includes—

an area periodically or occasionally occupied by a species or ecological community, and

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—

Part 5A (Land management (native vegetation)) of, and Schedule 5A to, the Local Land Services Act 2013,

Part 5B (Private native forestry) of the Local Land Services Act 2013,

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—

every person who, either at law or in equity—

is entitled to the land for any estate of freehold in possession, or

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

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

a person who leases land under the Crown Land Management Act 2016, and

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.

Planning Agency Head means the Secretary of the Department of Planning, Housing and Infrastructure.

Planning Minister means the Minister administering the Environmental Planning and Assessment Act 1979, Parts 4 and 5.

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.

prescribed biodiversity conservation measure means an action prescribed under section 6.4(2)(b) as an action that qualifies as a biodiversity conservation measure for the offset rules.

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.

relevant authority means—

for an application for development consent under the Environmental Planning and Assessment Act 1979, Part 4 for State significant development—the consent authority within the meaning of that Act, section 4.5, or

for an application for approval under the Environmental Planning and Assessment Act 1979, Division 5.2 to carry out State significant infrastructure—the Planning Minister.

residual impact, on biodiversity values, means the impact on biodiversity values of proposed development, activity or clearing after taking the following measures to avoid and minimise the impact—

the measures on which a biodiversity development assessment report relating to the proposed development, activity or clearing was based,

the measures required to be carried out under a consent or approval for the proposed development, activity or clearing.

species includes—

a defined subspecies, and

a taxon below a subspecies, and

a recognisable variant of a subspecies or taxon, and

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.

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.

Notes included in this Act do not form part of this Act.

A person who harms or attempts to harm—

an animal that is of a threatened species, or

an animal that is part of a threatened ecological community, or

a protected animal,

is guilty of an offence.

Maximum penalty (includes additional penalty for each animal)—

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

in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or

in any other case—Tier 4 monetary penalty.

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.

A person who picks—

a plant that is of a threatened species, or

a plant that is part of a threatened ecological community, or

a protected plant,

is guilty of an offence.

Maximum penalty (includes additional penalty for each plant)—

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

in the case of a plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or

in any other case—Tier 4 monetary penalty.

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.

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.

A person—

who damages any habitat of a threatened species or threatened ecological community, and

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.

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.

A person who deals in or attempts to deal in—

an animal or plant that is of a threatened species, or

an animal or plant that is part of a threatened ecological community, or

a protected animal or protected plant,

is guilty of an offence.

Maximum penalty (includes additional penalty for each animal or plant)—

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

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

in any other case—Tier 4 monetary penalty.

For the purposes of this section, a person deals in animals or plants if the person—

buys or sells the animals or plants, or

trades in animals or plants, or

imports into, or exports from, New South Wales the animals or plants, or

possesses the animals or plants.

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.

The regulations may exclude a dealing of a kind described in the regulations from the application of this section.

In this section—

buy, sell, trade, import or export includes—

advertise or hold out as being prepared to buy, sell, trade, import or export animals or plants, and

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.

A person who, without authority, liberates in New South Wales any animal (other than a captured protected animal) is guilty of an offence.

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.

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.