Biodiversity Conservation Regulation 2017

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

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.

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—

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.