New South Wales Consolidated Acts

BIODIVERSITY CONSERVATION ACT 2016 - SECT 2.8

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) 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) 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) 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) 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) 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) 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) 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) 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) The act was authorised by a private land conservation agreement (including a conservation agreement under the National Parks and Wildlife Act 1974 ).

(j) 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) 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) 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) 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) 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) 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.