New South Wales Consolidated Acts

BIODIVERSITY CONSERVATION ACT 2016

- As at 5 April 2024 
- Act 63 of 2016 

TABLE OF PROVISIONS

           Long Title

   PART 1 - PRELIMINARY

   1.1.    Name of Act
   1.2.    Commencement
   1.3.    Purpose of Act
   1.4.    Application of Act to terrestrial environment
   1.5.    Biodiversity and biodiversity values for purposes of Act
   1.6.    Definitions

   PART 2 - PROTECTION OF ANIMALS AND PLANTS

           Division 1 - Offences
           Note

   2.1.    Harming animals
   2.2.    Picking plants
   2.3.    Damaging declared areas of outstanding biodiversity value
   2.4.    Damaging habitat of threatened species or ecological community
   2.5.    Dealing in animals or plants
   2.6.    Liberating animals
   2.7.    Protection of marine mammals

           Division 2 - Defences

   2.8.    Acts authorised under other legislation etc
   2.9.    Acts authorised by regulations (including codes of practice)
   2.10.   Acts authorised by biodiversity conservation licence

           Division 3 - Biodiversity conservation licences

   2.11.   Licences to do acts that would otherwise constitute offence
   2.12.   Applications for licences
   2.13.   Grant or refusal and variation of licence
   2.14.   Conditions of licences
   2.15.   Cancellation or suspension of licences
   2.16.   Reasons for, and appeals against, licensing decisions
   2.17.   Regulations relating to licences

           Division 4 - Miscellaneous provisions

   2.18.   Protected animals (unless excluded) to be property of the Crown
   2.19.   Regulations for the purposes of this Part

   PART 3 - AREAS OF OUTSTANDING BIODIVERSITY VALUE

   3.1.    Declaration of areas of outstanding biodiversity value
   3.2.    Areas eligible to be declared
   3.3.    Procedural requirements before areas declared
   3.4.    Requirements following declaration of area
   3.5.    Amendment or revocation of declaration
   3.6.    Regulations with respect to declared areas

   PART 4 - THREATENED SPECIES AND THREATENED ECOLOGICAL COMMUNITIES

           Division 1 - Preliminary

   4.1.    Definition of "listing" species, ecological communities or threatening processes

           Division 2 - Listing of species and ecological communities

   4.2.    Lists of species and ecological communities
   4.3.    General eligibility for listing
   4.4.    Specific eligibility criteria for listing threatened species
   4.5.    Specific eligibility criteria for listing threatened ecological communities
   4.6.    Specific eligibility criteria for listing extinct species, species extinct in the wild and collapsed ecological communities
   4.7.    Regulations prescribing eligibility criteria for listing

           Division 3 - Procedure for listing (other than provisional listing)

   4.8.    Operation of Division
   4.9.    Scientific Committee responsible for listing
   4.10.   Who may initiate listing
   4.11.   Priority assessment of nominations or other proposals for listing
   4.12.   Nominations for listing
   4.13.   Scientific Committee's preliminary determination (except for proposals by other jurisdictions under common assessment method)
   4.14.   Proposed assessments by jurisdictions under common assessment method
   4.15.   Scientific Committee's final determination
   4.16.   Publication of final determination
   4.17.   Revision of Schedule on publication of final determination
   4.18.   Lists to be kept under review
   4.19.   Minor amendments to Schedules
   4.20.   Restriction on releasing certain information relating to listing etc

           Division 4 - Procedure for provisional listing of endangered or critically endangered species on emergency basis

   4.21.   Operation of Division
   4.22.   Scientific Committee responsible for provisional listing
   4.23.   Eligibility for provisional listing
   4.24.   Who may initiate provisional listing
   4.25.   Making nomination for provisional listing
   4.26.   Consideration of nomination for provisional listing by Scientific Committee
   4.27.   Publication of determination for provisional listing
   4.28.   Effect of publication of determination for provisional listing
   4.29.   Scientific Committee to review status of provisionally listed species
   4.30.   Termination of provisional listing

           Division 5 - Key threatening processes

   4.31.   List of key threatening processes
   4.32.   Processes eligible for listing as key threatening processes
   4.33.   Procedure for listing key threatening processes
   4.34.   Referral of nomination to Fisheries Scientific Committee

           Division 6 - Biodiversity Conservation Program for threatened species and threatened ecological communities

   4.35.   Establishment of Program
   4.36.   Content of Program
   4.37.   Review of Program

           Division 7 - Threatened Species Scientific Committee

   4.38.   Establishment of Scientific Committee
   4.39.   Scientific Committee not subject to Ministerial control
   4.40.   Functions of Scientific Committee
   4.41.   Members of Scientific Committee

   PART 5 - INVESTMENT STRATEGY AND PRIVATE LAND CONSERVATION AGREEMENTS

           Division 1 - Biodiversity Conservation Investment Strategy

   5.1.    Making of Strategy
   5.2.    Mapping of existing public and private biodiversity protected areas
   5.3.    Content of Strategy
   5.4.    Review and amendment of Strategy

           Division 2 - Biodiversity stewardship agreements

   5.5.    Minister and land owners may enter into biodiversity stewardship agreements
   5.6.    Content of biodiversity stewardship agreements
   5.7.    Land eligible to be designated as biodiversity stewardship site
   5.8.    Applications to enter into biodiversity stewardship agreements
   5.9.    Requirements relating to entering into biodiversity stewardship agreements
   5.10.   Duration of biodiversity stewardship agreements
   5.11.   Variation of biodiversity stewardship agreements
   5.12.   Registration of biodiversity stewardship agreements
   5.13.   Agreements to run with land and re-issue etc of agreements in certain cases
   5.14.   Application of Planning Act
   5.15.   Agreement does not prevent creation of national parks and other reservations
   5.16.   Proposals by public authorities affecting biodiversity stewardship sites
   5.17.   Resolution of certain disputes
   5.18.   Prospecting and mining on biodiversity stewardship sites
   5.19.   Activities authorised by mining or petroleum authorities not affected by biodiversity stewardship agreement

           Division 3 - Conservation agreements

   5.20.   Biodiversity Conservation Trust may enter into conservation agreements
   5.21.   General provisions relating to conservation agreements
   5.22.   Content of conservation agreements
   5.23.   Duration and variation of conservation agreements
   5.24.   Conservation agreements may be registered and run with land
   5.25.   Proposals by public authorities affecting land subject to conservation agreements
   5.26.   Activities authorised by mining or petroleum authorities not affected by conservation agreement

           Division 4 - Wildlife refuge agreements

   5.27.   Biodiversity Conservation Trust may enter into wildlife refuge agreements
   5.28.   General provisions relating to wildlife refuge agreements
   5.29.   Content of wildlife refuge agreements
   5.30.   Duration and variation of wildlife refuge agreements
   5.31.   Wildlife refuge agreements may be registered and run with land
   5.32.   Proposals by public authorities affecting land subject to wildlife refuge agreements
   5.33.   Activities authorised by mining or petroleum authorities not affected by wildlife refuge agreement

   PART 6 - BIODIVERSITY OFFSETS SCHEME

           Division 1 - General scheme provisions

   6.1.    Definitions: Part 6
   6.2.    Biodiversity offsets scheme
   6.3.    Impacts on biodiversity values to which biodiversity offsets scheme applies
   6.4.    Biodiversity conservation offsets under scheme
   6.5.    Serious and irreversible impacts on biodiversity values
   6.6.    Miscellaneous provisions relating to biodiversity offsets scheme

           Division 2 - Biodiversity assessment method

   6.7.    Minister may establish biodiversity assessment method
   6.8.    Matters to be dealt with by the biodiversity assessment method
   6.9.    Review of biodiversity assessment method
   6.10.   Scheme for accreditation of persons who apply method

           Division 3 - Biodiversity assessment reports

   6.11.   Biodiversity stewardship site assessment report
   6.12.   Biodiversity development assessment report
   6.13.   Biodiversity certification assessment report
   6.14.   Modification or withdrawal of biodiversity assessment report
   6.15.   Currency of biodiversity assessment report
   6.16.   Miscellaneous provisions applying to biodiversity assessment reports

           Division 4 - Creation, transfer etc of biodiversity credits

   6.17.   Creation of biodiversity credits
   6.18.   Duration of biodiversity credit
   6.19.   Transfers of biodiversity credits
   6.20.   Registration of transfer of biodiversity credit
   6.21.   Payment to Fund on first transfer of biodiversity credit or on retirement without first transfer
   6.22.   Other transactions relating to biodiversity credits
   6.23.   Grounds for cancellation of biodiversity credit
   6.24.   General provisions relating to cancellation of biodiversity credits
   6.25.   Suspension of biodiversity credit
   6.26.   Appeals to Land and Environment Court

           Division 5 - Retirement of biodiversity credits

   6.27.   Retirement of biodiversity credits
   6.28.   Deferred credit retirement arrangements
   6.29.   Minister may require retirement of credits if not retired in accordance with credit retirement requirement

           Division 6 - Payment into Biodiversity Conservation Fund as alternative to retirement of biodiversity credits

   6.30.   Payment as alternative to retirement of biodiversity credits
   6.31.   Corresponding obligation to secure required biodiversity offsets
   6.32.   Calculation of amount payable as alternative to retiring credits
   6.33.   Trust may verify payment

           Division 7 - Biodiversity Stewardship Payments Fund

   6.34.   Biodiversity Stewardship Payments Fund
   6.35.   Fund Manager
   6.36.   Management and control of Fund
   6.37.   Reporting and other obligations of Fund Manager

           Division 8 - Biodiversity offsets scheme administration costs

   6.38.   Scheme administration cost recovery
   6.39.   Biodiversity Stewardship Operations Account

   PART 7 - BIODIVERSITY ASSESSMENT AND APPROVALS UNDER PLANNING ACT

           Division 1 - Preliminary

   7.1.    Definitions: Part 7
   7.2.    Development or activity "likely to significantly affect threatened species"
   7.3.    Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats
   7.4.    Exceeding biodiversity offsets scheme threshold
   7.5.    Relationship with Planning Act
   7.6.    Part does not apply to biodiversity certified land

           Division 2 - Biodiversity assessment requirements

   7.7.    Biodiversity assessment for Part 4 development (other than State significant development or complying development)
   7.8.    Biodiversity assessment for Part 5 activity
   7.9.    Biodiversity assessment for State significant development or infrastructure
   7.10.   Regulations relating to amendments of lists of threatened species or ecological communities

           Division 3 - Consultation and concurrence

   7.11.   Consultation with Minister administering this Act if a Minister is consent authority under Part 4 or determining authority under Part 5
   7.12.   Concurrence of Environment Agency Head if a Minister is not consent authority under Part 4 or determining authority under Part 5

           Division 4 - Biodiversity assessment and offsets

   7.13.   Development other than State significant development or infrastructure
   7.14.   State significant development or infrastructure
   7.15.   Part 5 activity
   7.16.   Proposed development or activity that has serious and irreversible impacts on biodiversity values
   7.17.   Modifications of planning approvals or activities
   7.18.   Planning agreements--biodiversity offsets
   7.19.   Other environmental contributions not affected

           Division 5 - Preparation of species impact statements

   7.20.   Form and content of species impact statement
   7.21.   Environment Agency Head's requirements for species impact statements

   PART 8 - BIODIVERSITY CERTIFICATION OF LAND

           Division 1 - Preliminary

   8.1.    Definitions: Part 8

           Division 2 - Conferral of biodiversity certification of land

   8.2.    Biodiversity certification
   8.3.    Approved conservation measures under biodiversity certification
   8.4.    Effect of biodiversity certification
   8.5.    Application for biodiversity certification
   8.6.    Consultation and public notification requirements in relation to biodiversity certification application
   8.7.    Minister may confer biodiversity certification
   8.8.    Biodiversity certification where serious and irreversible impacts
   8.9.    Parties to biodiversity certification

           Division 3 - Duration, extension and review of biodiversity certification

   8.10.   Duration of biodiversity certification
   8.11.   Extension of biodiversity certification
   8.12.   Review of biodiversity certification

           Division 4 - Enforcement of approved conservation and other measures

   8.13.   Compliance with approved conservation and other measures
   8.14.   Equivalent conservation measures
   8.15.   Appeals

           Division 5 - Biodiversity certification agreements

   8.16.   Biodiversity certification agreements
   8.17.   Registered agreements run with land
   8.18.   Minister may order party to rectify contravention of agreement
   8.19.   Court cannot extinguish obligations
   8.20.   Regulations--biodiversity certification agreements

           Division 6 - Suspension, revocation and modification of certification

   8.21.   Suspension and revocation of certification
   8.22.   Modification of certification
   8.23.   Appeals

           Division 7 - General provisions relating to certification

   8.24.   Notification of certification and changes to certification
   8.25.   Intra-government dispute resolution arrangements
   8.26.   General provisions relating to biodiversity certification

   PART 9 - PUBLIC CONSULTATION AND PUBLIC REGISTERS

           Division 1 - Public consultation

   9.1.    Public consultation required on documents under this Act to which Division applies
   9.2.    Minimum public exhibition period for proposed public consultation documents
   9.3.    Submissions about proposed public consultation documents
   9.4.    Amendment of public consultation documents
   9.5.    Validity of public consultation documents
   9.6.    Regulations relating to public consultation

           Division 2 - Public registers

   9.7.    Registers to which Division applies
   9.8.    Registers to be available on government website
   9.9.    Providing other access to registers
   9.10.   Restriction of access to certain information in registers
   9.11.   Regulations relating to public registers

   PART 10 - BIODIVERSITY CONSERVATION TRUST

           Division 1 - Establishment, functions and operation of Trust

   10.1.   Establishment of Trust
   10.2.   Status of Trust
   10.3.   Trust Board
   10.4.   Object of Trust
   10.5.   Functions of Trust
   10.6.   Powers of Trust
   10.7.   Trust to conduct activities in accordance with approved business plan
   10.8.   Acquisition of property by gift
   10.9.   Dealings with certain property acquired by gift, devise or bequest
   10.10.  Staff of Trust
   10.11.  Delegation by Biodiversity Conservation Trust
   10.12.  Annual reporting information for Trust
   10.13.  Exemption from certain State taxes
   10.14.  Recovery of money by Trust
   10.15.  Saving provision relating to existing Trust

           Division 2 - Biodiversity Conservation Fund

   10.16.  Biodiversity Conservation Fund
   10.17.  Management and control of Biodiversity Conservation Fund

           Division 3 - Biodiversity Conservation Trust Public Fund

   10.18.  Biodiversity Conservation Trust Public Fund
   10.19.  Distribution of outstanding property of Public Fund on dissolution of Trust

   PART 11 - REGULATORY COMPLIANCE MECHANISMS

           Division 1 - Preliminary

   11.1.   Definitions: Part 11
   11.2.   Purposes for which powers may be exercised under this Part

           Division 2 - Stop work orders

   11.3.   Environment Agency Head may make stop work order
   11.4.   Taking effect and extension of stop work order
   11.5.   Offence--contravention of stop work order
   11.6.   Appeal against stop work order
   11.7.   Consultation about modification or licensing of proposed detrimental action

           Division 3 - Interim protection orders

   11.8.   Recommendation for making of interim protection order
   11.9.   Making of interim protection orders
   11.10.  Taking effect and duration of interim protection order
   11.11.  Notice of making of interim protection order
   11.12.  Offence--contravention of interim protection order
   11.13.  Appeal against interim protection order

           Division 4 - Remediation orders

   11.14.  Definition of "damage"
   11.15.  Orders for remediation work relating to damage to land, habitat and plants and animals
   11.16.  Remediation work required by order
   11.17.  Persons to whom remediation orders may be given
   11.18.  Other person may carry out remediation work if failure to comply with order
   11.19.  Development consent not required to carry out remediation work
   11.20.  Entry to land to carry out remediation work
   11.21.  Recovery by person given remediation order
   11.22.  Offence of contravening remediation order or obstructing remediation work
   11.23.  Appeals under this Division

           Division 5 - Biodiversity offsets enforcement order

   11.24.  Definitions
   11.25.  Order requiring biodiversity stewardship site owner to retire biodiversity credits
   11.26.  Order requiring owner to rectify breach of biodiversity stewardship agreement
   11.27.  Offence--contravention of biodiversity offsets enforcement order
   11.28.  Appeals under this Division

           Division 6 - Directions relating to protected animals and threatened species of animals

   11.29.  Definition of "protected animals"
   11.30.  Authorised officer who may give directions
   11.31.  Directions to stop activity distressing protected animals
   11.32.  Directions for welfare of protected animals in confinement
   11.33.  Taking effect and duration of animal protection direction
   11.34.  Appeals to Minister against animal protection direction
   11.35.  Directions by Minister
   11.36.  Offence--contravention of animal protection direction

   PART 12 - INVESTIGATION POWERS

           Division 1 - Preliminary

   12.1.   Definitions: Part 12
   12.2.   Purposes for which powers under this Part may be exercised
   12.3.   Effect on other functions

           Division 2 - Authorised officers

   12.4.   Appointment of authorised officers
   12.5.   Scope of authority
   12.6.   Identification

           Division 3 - Powers to require information and records

   12.7.   Application of Part
   12.8.   Requirement to provide information and records
   12.9.   Manner, time etc for compliance
   12.10.  Provisions relating to records

           Division 4 - Powers of entry and search of premises

   12.11.  Powers of authorised officers to enter premises
   12.12.  Entry into residential premises only with permission or warrant
   12.13.  Powers of authorised officers to do things at premises
   12.14.  Search warrants
   12.15.  Authorised officers may request assistance
   12.16.  Assistance to be given to authorised officers
   12.17.  Care to be taken and compensation
   12.18.  Disposal of things seized

           Division 5 - Powers to question and to identify persons

   12.19.  Power of authorised officers to require answers
   12.20.  Recording of evidence
   12.21.  Power of authorised officers to demand name and address

           Division 6 - General

   12.22.  Offences
   12.23.  Provisions relating to requirements to furnish records or information or answer questions
   12.24.  Revocation or variation
   12.25.  Extraterritorial application
   12.26.  Extraterritorial exercise of functions

           Division 7 - Special provisions relating to native vegetation clearing enforcement

   12.27.  Application of Division
   12.28.  Entry into premises requires approval of Environment Agency Head
   12.29.  Notice to attend to answer questions requires approval of Environment Agency Head
   12.30.  Authorised officers cannot arrest person for failing to give name and address
   12.31.  Incriminating information or answer not admissible whether or not objection made

   PART 13 - CRIMINAL AND CIVIL PROCEEDINGS

           Division 1 - Criminal proceedings

   13.1.   Maximum monetary penalty--Tier 1, Tier 2, Tier 3, Tier 4 or Tier 5
   13.2.   Proceedings for offences
   13.3.   Authority to take proceedings
   13.4.   Time within which proceedings may be commenced
   13.5.   Penalty notices for certain offences
   13.6.   Liability of directors etc for offences by corporation--offences attracting executive liability
   13.7.   Liability of directors etc for offences by corporation--accessory to the commission of the offences
   13.8.   Evidence as to state of mind of corporation
   13.9.   Ancillary offences
   13.10.  Offence--false or misleading information
   13.11.  Continuing offences
   13.12.  Sentencing for offence--matters to be considered

           Division 2 - Civil proceedings

   13.13.  Definition of "breach"
   13.14.  Civil proceedings to remedy or restrain breaches of this Act or regulations (or Part 5A or 5B of the Local Land Services Act 2013)
   13.14A. Civil proceedings to remedy or restrain breaches of Part 5B of Forestry Act 2012
   13.15.  Civil proceedings for enforcement of private land conservation agreements
   13.16.  Civil proceedings for enforcement of biodiversity certification agreements
   13.17.  Provisions relating to proceedings under this Division

           Division 3 - Ancillary court orders

   13.18.  Operation of Division
   13.19.  Orders generally
   13.20.  Orders for restoration and prevention
   13.21.  Orders for costs, expenses and compensation at time offence proved
   13.22.  Recovery of costs, expenses and compensation after offence proved
   13.23.  Orders regarding costs and expenses of investigation
   13.24.  Orders regarding monetary benefits
   13.25.  Additional orders
   13.26.  Offence of failing to comply with court order

           Division 4 - Enforceable undertakings

   13.27.  Enforcement of undertakings

           Division 5 - Evidentiary provisions

   13.28.  Onus of proof of reasonable excuse
   13.29.  Responsibility of landholder for activities carried out on the land
   13.30.  Documentary evidence generally
   13.31.  Certificate evidence of certain matters
   13.32.  Evidence from photographs and other images of land
   13.33.  Proof of certain appointments not required

   PART 14 - MISCELLANEOUS

   14.1.   Act to bind Crown
   14.2.   Biodiversity Conservation Advisory Panel
   14.3.   Biodiversity information programs
   14.4.   Delegation of functions by Minister or Environment Agency Head
   14.5.   Exclusion of personal liability
   14.6.   Fees and other charges recoverable by Environment Agency Head
   14.7.   Relationship between this Act and the Fisheries Management Act 1994
   14.7A.  Provisions relating to regulation or enforcement of native vegetation legislation
   14.8.   Native title rights and interests
   14.9.   Service of documents
   14.10.  Regulations
   14.11.  Review of Act
           SCHEDULE 1
           SCHEDULE 2
           SCHEDULE 3
           SCHEDULE 4
           SCHEDULE 5
           SCHEDULE 6
           SCHEDULE 7
           SCHEDULE 8
           SCHEDULE 9
           Schedule 11 (Repealed)