Biodiversity Conservation Regulation 2017

This Regulation is the Biodiversity Conservation Regulation 2017.

This Regulation commences on 25 August 2017 and is required to be published on the NSW legislation website.

In this Regulation—

national park estate and other conservation areas means any of the following areas—

a wilderness area declared under the Wilderness Act 1987,

land reserved under the National Parks and Wildlife Act 1974 or acquired by the Minister administering that Act under Part 11 of that Act,

land dedicated or set apart as a flora reserve under the Forestry Act 2012 (or any Act repealed by that Act),

land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies,

a declared area of outstanding biodiversity value under the Act,

an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994,

a declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth,

land dedicated or reserved under the Crown Lands Act 1989 for similar public purposes for which land is reserved, declared or listed under the other Acts referred to in this definition,

land to which an interim protection order under Part 11 of the Act applies,

Lord Howe Island.

the Act means the Biodiversity Conservation Act 2016.

variation rules—see clause 6.4.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

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

The following are prescribed as additional biodiversity values for the purposes of the Act—

threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

vegetation abundance—being the occurrence and abundance of vegetation at a particular site,

habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,

threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,

water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.

For the purposes of this Regulation, a fee unit is—

in the financial year 2017/2018—$100, and

in each subsequent financial year—the amount calculated as follows—

where—

A is the CPI number for the March quarter in the financial year immediately preceding the financial year for which the amount is calculated.

B is the CPI number for the March quarter of 2017.

The amount of a fee unit and the amount of a fee calculated by reference to a fee unit is to be rounded to the nearest dollar (and an amount of 50 cents is to be rounded down).

However, if the amount of a fee unit calculated for any financial year is less than the amount that applied for the previous financial year, then the amount for that previous financial year applies instead.

As soon as practicable after the CPI number for the March quarter is first published by the Australian Statistician, the Environment Agency Head is required to publish on the NSW legislation website a notice of the amount of the fee unit for the next financial year. That notice may be published by the addition of an editorial note relating to the amount of the fee unit in the in force version of this Regulation published on the NSW legislation website.

The Environment Agency Head is also required to give public notice on an appropriate government website of the actual amounts of the fees applying in each financial year resulting from the application of the amount of fee unit calculated under this clause.

This clause operates to change an amount of a fee that is calculated by reference to a fee unit and that change is not dependent on the publication of a notice by the Environment Agency Head under this clause.

In this clause—

CPI number means the Consumer Price Index (All Groups Index) for Sydney published by the Australian Bureau of Statistics in the latest published series of that index.

financial year means a period of 12 months commencing on 1 July.

Note.

See section 14.6 of the Act with respect to recovery, waiver or refund of fees.

Editorial note.

Fee unit amount calculated under this clause—

Financial year

Fee unit amount

2018–2019

$102

2019–2020

$103

2020–2021

$105

2021–2022

$106

2022–2023

$111

2023–2024

$119

2024–2025

$124

2025–2026

$127

2026–2027

$132

In this Division—

approach a marine mammal includes operate an aircraft or vessel that approaches the marine mammal.

aircraft means any airborne craft, including a fixed wing craft, helicopter, gyrocopter, glider, hang glider, hot air balloon, airship or unmanned aircraft.

calf means a whale, dolphin or dugong that is not more than half the length of an adult of the same species.

constant slow speed, in relation to a marine mammal or group of marine mammals that is being approached, means a speed of approach to the marine mammal or group that is constant, slow and leaves negligible wake.

dolphin means an animal of the family Delphinidae or Phocoenidae (other than a killer whale (Orcinus orca)).

dugong means an animal of the species Dugong dugon.

marine mammal means an animal of the order Cetacea or Sirenia or the family Otariidae or Phocidae.

operate a vessel includes—

to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and

to pilot the vessel.

prohibited vessel means a vessel that is a personal motorised water craft (for example, a jet ski), parasail, hovercraft, wing-in-ground effect craft or a motorised diving aid (for example, a motorised underwater scooter) and includes a remotely operated water craft (for example, a remote controlled speed boat).

pup means a seal or sea lion that is not more than half the length of an adult of the same species.

seal or sea lion means an animal of the family Otariidae or Phocidae.

swimming includes snorkelling or diving.

unmanned aircraft means any unmanned airborne craft, including a drone or other remotely piloted airborne craft.

vessel includes a water craft of any description that is used or capable of being used as a means of transportation on water, but does not include an aircraft that is capable of landing on water.

whale means an animal of the order Cetacea other than a dolphin and includes a killer whale (Orcinus orca).

A person must not interfere with a marine mammal.

Maximum penalty—Tier 2 monetary penalty.

In this clause, interfere with includes harass, chase, herd, tag, mark and brand.

A person must not approach a marine mammal any closer than the distance declared by or under this clause.

Maximum penalty—Tier 2 monetary penalty.

The following distances are declared for any marine mammal (except a marine mammal to which subclause (3) or (4) applies)—

300 metres—if the person is approaching a whale, dolphin or dugong and is on, or using, a prohibited vessel,

100 metres—if the person is approaching a whale and is on, or using, a vessel other than a prohibited vessel,

50 metres—if the person is approaching a dolphin or dugong and is on, or using, a vessel other than a prohibited vessel,

30 metres—if the person is approaching a whale, dolphin or dugong and is swimming,

a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft,

a height lower than 300 metres within a horizontal radius of 300 metres—if the person is operating an aircraft (other than a helicopter, gyrocopter or unmanned aircraft),

a height lower than 500 metres within a horizontal radius of 500 metres—if the person is operating a helicopter or gyrocopter,

10 metres—if the person is approaching a seal or sea lion (other than a pup) that is in the water and the person is in, or on, a vessel or is swimming or is a pedestrian,

40 metres—if the person is approaching a seal or sea lion (other than a pup) that is hauled out on land and the person is swimming, operating a vessel or vehicle or is a pedestrian,

80 metres—if the person is approaching a pup.

The following distances are declared for any whale, dolphin or dugong that is predominantly white in colour and that is approached by a person operating a vessel or aircraft—

500 metres—if the person is operating a vessel,

a height lower than 610 metres within a horizontal radius of 610 metres—if the person is operating an aircraft (other than an unmanned aircraft),

a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft.

The Environment Agency Head may, by order, declare a special protection approach distance for a marine mammal described in the order that is approached by a person in the circumstances described in the order if satisfied that the marine mammal is—

a dugong or other rarely sighted species of marine mammal, or

a morphological or colour-variant marine mammal, or

a female marine mammal that has recently given, or is about to give, birth, or

a calf separated from a mother or group of marine mammals, or

a sick or injured marine mammal, or

at risk of harassment, injury or death.

An order under this subclause is required to be published in the Gazette as soon as practicable after it is made and has effect for the period (not exceeding 6 months) specified in the order.

Until the order declaring a special protection approach distance is so published, the order does not apply to any persons who establish that they were not aware of the declaration.

This clause does not apply to a person approaching a marine mammal in the following circumstances—

the person is approaching in the course of taking action that is reasonably necessary to prevent a risk to human health or to deal with a serious threat to human life or property,

the person is approaching in the course of taking action in the person’s capacity as an officer of or person acting on behalf of a law enforcement agency and the action is reasonably necessary for the purposes of law enforcement,

the person is approaching in the course of taking an action in the person’s capacity as a fisheries officer under the Fisheries Management Act 1994 and the action is reasonably necessary for the purposes of exercising a law enforcement function conferred on the officer under that Act,

the person is approaching in the course of taking action that is a result of an unavoidable accident, other than an accident caused by the person’s negligent or reckless behaviour,

the person is approaching in the course of taking any action as a result of the person being given a direction by an authorised officer (within the meaning of Part 12 of the Act) and that is being taken in accordance with that direction.

In this clause—

law enforcement agency means—

the NSW Police Force or the police force of another State or Territory, or

the Australian Federal Police, or

the New South Wales Crime Commission, or

Transport for NSW, or

the Department of Climate Change, Energy, the Environment and Water.

A person operating a prohibited vessel that is being approached by a whale, dolphin or dugong must move away from the whale, dolphin or dugong at a constant slow speed so that the vessel remains at least 300 metres away from the whale, dolphin or dugong.

Maximum penalty—Tier 2 monetary penalty.

In this clause—

caution zone for a whale, dolphin or dugong means an area around the whale, dolphin or dugong of a radius of the following—

for a dolphin or dugong (including a calf)—150 metres,

for a whale (including a calf)—300 metres.

Within the caution zone for a whale, dolphin or dugong (other than a calf), a person operating a vessel that is not a prohibited vessel—

must operate the vessel at a constant slow speed and in a manner that consistently minimises noise, and

must make sure that the vessel does not drift closer than—

for a dolphin or dugong—50 metres, or

for a whale—100 metres, and

if the whale, dolphin or dugong shows signs of being disturbed—must immediately withdraw the vessel from the caution zone at a constant slow speed, and

if there is more than one person on the vessel—must post a lookout for whales, dolphins or dugongs, and

without limiting paragraph (b), must approach a whale, dolphin or dugong only—

from the rear, at an angle of no closer than 30 degrees to its observed direction of travel, or

by positioning the vessel ahead of the whale, dolphin or dugong at more than 30 degrees from its observed direction of travel, and

must make sure the vessel does not restrict the path of the whale, dolphin or dugong, and

must make sure the vessel is not used to pursue the whale, dolphin or dugong.

For the purposes of paragraph (c), signs of disturbance include regular changes in direction or speed of swimming, hasty dives, changes in breathing patterns, changes in acoustic behaviour or aggressive behaviour such as tail slashing or trumpet blows.

A person operating a vessel that is not a prohibited vessel must not allow the vessel to enter the caution zone of a calf.

If a calf approaches a vessel that is not a prohibited vessel so that the vessel comes within the caution zone of the calf, the person operating the vessel—

must immediately stop the vessel, and

must—

turn off the vessel’s engines, or

disengage the vessel’s gears, or

withdraw the vessel from the caution zone at a constant slow speed.

A person operating a vessel that is not a prohibited vessel must not enter the caution zone of a whale, dolphin or dugong if there are more than 2 vessels in the caution zone.

If a whale (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must—

disengage the vessel’s gears and let the whale approach, or

reduce the speed of the vessel and continue on a course away from the whale.

If a dolphin or dugong (other than a calf) approaches a vessel that is not a prohibited vessel or comes within the limits specified in subclause (2)(b), the person operating the vessel must not suddenly change the course or speed of the vessel.

Maximum penalty—Tier 2 monetary penalty.

A person must not operate an aircraft so as to approach a marine mammal from head-on for the purpose of observing a marine mammal.

A person must not operate an aircraft so as to hover over a marine mammal.

A person must not land an aircraft on water for the purpose of observing a marine mammal.

Maximum penalty—Tier 2 monetary penalty.

A person must not intentionally feed or attempt to feed a marine mammal that is in its natural environment.

Maximum penalty—Tier 2 monetary penalty.

In this clause—

feed a marine mammal includes throwing food or rubbish in the water near a marine mammal.