The Biodiversity Conservation Regulation 2017 fills in technical detail for the Biodiversity Conservation Act 2016: it defines protected areas and offences (notably marine‑mammal approach limits and prohibitions), sets the fee‑unit indexation rule, and prescribes the biodiversity‑offsets framework (including like‑for‑like rules, variation options, strategic offset delivery agreements, and Biodiversity Conservation Fund/Trust operations).
It affects developers, landholders, vessel/aircraft operators, the Environment Agency Head and the Biodiversity Conservation Trust by creating specific compliance duties, penalty regimes, funding options and administrative discretions that determine who pays for offsets, how credits are matched/retired, and how stewardship funds are managed.
The Biodiversity Conservation Regulation 2017 (the Regulation) is subordinate legislation made under the Biodiversity Conservation Act 2016 (BC Act). Its primary function is to give practical effect to the BC Act’s protective, listing, offsetting, agreement and enforcement regimes.
Part 1 contains preliminary matters. Clause 1.3 defines “national park estate and other conservation areas” by cross-reference to ten separate statutes or instruments, and defines “the Act” as the BC Act. Clause 1.4 prescribes six additional biodiversity values for the purposes of s 1.5 of the BC Act: threatened species abundance, vegetation abundance, habitat connectivity, threatened species movement, flight path integrity and water sustainability. These values must be considered when assessing impacts under the biodiversity assessment method (BAM). Clause 1.5 establishes the fee unit (initially $100 in 2017/18, indexed annually by CPI with a floor preventing reduction) and requires the Environment Agency Head to publish both the unit and the resultant actual fees.
Part 2 protects animals and plants. Division 2.1 imposes a detailed code for marine mammals. Clause 2.1 supplies 15 definitions (including “prohibited vessel”, “calf”, “constant slow speed”). Clause 2.2 prohibits interference (including harass, chase, tag, mark or brand) with a maximum penalty of a Tier 2 monetary penalty. Clause 2.3 declares approach distances: 300 m for whales on a prohibited vessel, 100 m for whales on other vessels, 50 m for dolphins/dugongs on vessels, 30 m when swimming, altitude limits for aircraft and unmanned aircraft, and special distances for seals, pups and white-coloured individuals. Subclauses (4)–(5) allow the Environment Agency Head to declare temporary special protection distances (published in the Gazette, maximum 6 months). Subclause (6) lists five defences (risk to human life, law enforcement, fisheries officers, unavoidable accident, authorised officer direction). Clauses 2.4–2.8 impose operational rules for vessels, aircraft and feeding, and prohibit swimming within 100 m of whales or 50 m of dolphins/dugongs. Clause 2.8A (inserted 2021) prohibits breeding or importing cetaceans and deems those acts to be “harming” for the purposes of s 2.7(4) of the BC Act.
Current sections
Direct links to the current provisions in Biodiversity Conservation Regulation 2017.
Section 2.10 of the Act provides that it is a defence to a prosecution for an offence under this Division if the person charged establishes that the act that constituted the offence was authorised by and done in accordance with a biodiversity conservation licence. Section 2.7(5) of the Act prevents the issue of biodiversity conservation licences that authorise harm to marine mammals or the obtaining of marine mammals for exhibition or other purposes unless it is necessary for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals.
2
Definitions
2 Definitions
2.1 Definitions
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—
(a) 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
(b) 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).
cl 2.1: Am 2020 (598), Sch 1[1]–[4].
Part 3
Areas of outstanding biodiversity value
Part 3 Areas of outstanding biodiversity value
Part 3 Areas of outstanding biodiversity value
Division 3
Criteria for declaration
Division 3 Criteria for declaration
Division 3.1 Criteria for declaration
3
Criteria for declaring areas of outstanding biodiversity value (section 3.2)
3 Criteria for declaring areas of outstanding biodiversity value (section 3.2)
3.1 Criteria for declaring areas of outstanding biodiversity value (section 3.2)
(1) This clause sets out the criteria to be applied by the Minister in determining whether an area should be declared an area of outstanding biodiversity value because—
(a) the area is important at a state, national or global scale, and
(b) the area makes a significant contribution to the persistence of at least one of the following—
(i) multiple species or at least one threatened species or ecological community,
(ii) irreplaceable biological distinctiveness,
(iii) ecological processes or ecological integrity,
(iv) outstanding ecological value for education or scientific research.
(2) An area makes a significant contribution to the persistence of multiple species or at least one threatened species or ecological community if—
(a) it provides resilience during periods of environmental stress that is important for their continued existence, or
(b) it sustains adaptive capacity or evolutionary potential because it contains high levels of unique components of genetic or phenotypic diversity that will enable species to adapt to changing environments or it functions as an important ecological or evolutionary refuge able to sustain viable populations of species at risk due to climate change or other environmental stresses, or
(c) it supports migration or dispersal of animals and plants, currently or in the future, that will contribute significantly to the persistence of species at risk, or
(d) it is habitat critical for the survival of a threatened species.
(3) An area makes a significant contribution to the persistence of irreplaceable biological distinctiveness if—
(a) it has a very high structural, functional or compositional diversity, or
(b) it is an essential site for the persistence of evolutionary or ecological distinctive species, endemic species or ecological communities, or
(c) it is an essential site for the persistence of 2 or more threatened species or ecological communities in any combination.
(4) An area makes a significant contribution to the persistence of ecological processes or ecological integrity if—
(a) it has ecological integrity, being an area that is—
(i) an outstanding, relatively intact example of a functioning ecosystem type, or if a fully intact ecosystem does not remain, then the best remaining example of that ecosystem type that contributes to maintaining the persistence of biodiversity and ecological integrity, or
(ii) the most intact remaining site of a species occurrence that provides habitat requirements vital to the conservation of a species, or
(iii) the last known remaining site of a species occurrence, or
(b) it is a primary contributor to the continuation of essential ecological processes, or
(c) it is an essential site for a significant proportion of the population of a species during one or more key life history stages or processes.
(5) An area makes a significant contribution to the persistence of outstanding ecological value for education or scientific research if it contains established infrastructure or data related to long-term ecological research monitoring programs that establish an irreplaceable historic baseline, being the best site anywhere in NSW for long-term research on particular species, ecological communities or ecological processes.
(6) The Environment Agency Head may, following consultation with the Secretary of the Department of Planning, Housing and Infrastructure, publish guidelines on the application of the criteria under this clause that the Environment Agency Head will take into account when making a recommendation under section 3.3 of the Act for the declaration of an area of outstanding biodiversity value.
cl 3.1: Am 2024 No 47, Sch 1.3[2].
Part 4
Threatened species and ecological communities—listing criteria
Part 4 Threatened species and ecological communities—listing criteria
Part 4 Threatened species and ecological communities—listing criteria
Division 4
Criteria for listing of threatened species
Division 4 Criteria for listing of threatened species
Division 4.1 Criteria for listing of threatened species
4
Specific eligibility criteria for determinations by Scientific Committee of threatened species listings (section 4.4)
4 Specific eligibility criteria for determinations by Scientific Committee of threatened species listings (section 4.4)
4.1 Specific eligibility criteria for determinations by Scientific Committee of threatened species listings (section 4.4)
(1) Critically endangered species The relevant criteria for critically endangered species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as a critically endangered species on the basis that it is facing an extremely high risk of extinction in Australia in the immediate future.
(2) Endangered species The relevant criteria for endangered species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as an endangered species on the basis that—
(a) it is facing a very high risk of extinction in Australia in the near future, and
(b) it is not eligible to be listed as a critically endangered species.
(3) Vulnerable species The relevant criteria for vulnerable species set out in this Division apply to a determination by the Scientific Committee that a species is eligible to be listed as a vulnerable species on the basis that—
(a) it is facing a high risk of extinction in Australia in the medium-term future, and
(b) it is not eligible to be listed as a critically endangered species or an endangered species.
(4) Listing may be based on species satisfying any one or more of the relevant criteria A species is eligible to be listed in a particular category if the criteria specified in any of the following clauses of this Division apply to the species.
(5) Special additional criteria for listing populations A population of a species is not eligible to be listed as a threatened species under any of the criteria specified in the following clauses of this Division unless—
(a) the species to which the population belongs is not separately listed as a threatened species, and
(b) the population is, in the opinion of the Scientific Committee, of significant conservation value based on its role in the conservation of the species or a number of other species.
Note.
Section 4.4 of the Act provides that if a species is not eligible to be listed in any category in accordance with that section on the basis of the risk of extinction in Australia, then it is eligible to be listed in accordance with that section on the basis of the risk of extinction in New South Wales.
Part 5
Provisions relating to private land conservation agreements
Part 5 Provisions relating to private land conservation agreements
Part 5 Provisions relating to private land conservation agreements
5
Criteria for determining if land eligible to be designated as biodiversity stewardship site (section 5.7(3))
5 Criteria for determining if land eligible to be designated as biodiversity stewardship site (section 5.7(3))
5.1 Criteria for determining if land eligible to be designated as biodiversity stewardship site (section 5.7(3))
(1) Land is not eligible to be designated as a biodiversity stewardship site by a biodiversity stewardship agreement if—
(a) the Minister is of the opinion that any current or previous use or proposed use of the land proposed to be designated as the site is inconsistent with biodiversity conservation, or
(b) the Minister is of the opinion that any use or proposed use of any land proposed to be designated as the site (or that is in the vicinity of that land) will prevent relevant management actions from being carried out on the land proposed to be designated as the site or prevent the purpose of those actions from being achieved, or
(c) the Minister is of the opinion that the owner of the land proposed to be designated as the site is already under a legal obligation to carry out biodiversity conservation measures on the land unless—
(i) a government or statutory agency that imposed the legal obligation, or that administers the provisions relating to the legal obligation (or a Minister to whom the agency is responsible) advises in writing that the legal obligation was not created for biodiversity offset purposes, or
(ii) the biodiversity stewardship agreement is entered into for the purpose of satisfying the legal obligation and the biodiversity credits generated in connection with the land are to be retired and not traded or used to meet any other biodiversity offset obligation, or
(d) an offset arrangement made for the purpose of complying with requirements imposed by or under any Act (including the requirements of any authority granted by a public authority under any Act).
(3) Subclause (1) does not prevent other parts of a parcel of land (that do not comprise land referred to in subclause (1)(a)–(e)) from being designated as a biodiversity stewardship site by a biodiversity stewardship agreement.
cl 5.1: Am 2021 No 47, Sch 3.1.
Part 6
Biodiversity offsets scheme
Part 6 Biodiversity offsets scheme
Part 6 Biodiversity offsets scheme
Division 6
General
Division 6 General
Division 6.1 General
6
Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
6 Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
6.1 Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
(1) The impacts on biodiversity values of the following actions are prescribed (subject to subclause (2)) as biodiversity impacts to be assessed under the biodiversity offsets scheme—
(a) the impacts of development on the following habitat of threatened species or ecological communities—
(i) karst, caves, crevices, cliffs and other geological features of significance,
(ii) rocks,
(iii) human made structures,
(iv) non-native vegetation,
(b) the impacts of development on the connectivity of different areas of habitat of threatened species that facilitates the movement of those species across their range,
(c) the impacts of development on movement of threatened species that maintains their lifecycle,
(d) the impacts of development on water quality, water bodies and hydrological processes that sustain threatened species and threatened ecological communities (including from subsidence or upsidence resulting from underground mining or other development),
(e) the impacts of wind turbine strikes on protected animals,
(f) the impacts of vehicle strikes on threatened species of animals or on animals that are part of a threatened ecological community.
(2) The additional biodiversity impacts prescribed by this clause—
(a) are prescribed for the purposes of assessment and biodiversity assessment reports under the Act, but are not additional biodiversity impacts for the purposes of calculating the number and class of biodiversity credits that are required under a biodiversity assessment report to be retired to offset the residual impact on biodiversity values of proposed development, proposed clearing of native vegetation or proposed biodiversity certification of land, and
(b) may be taken into account in the determination of the biodiversity credits required to be retired (or other conservation measures required to be taken) under a planning approval or vegetation clearing approval or under a biodiversity certification of land.
Part 7
Biodiversity assessment and approvals under Planning Act
Part 7 Biodiversity assessment and approvals under Planning Act
Part 7 Biodiversity assessment and approvals under Planning Act
(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves—
(a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or
(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.
(2) Proposed development that is or involves the clearing of native vegetation on Lord Howe Island does not exceed the biodiversity scheme threshold, despite anything to the contrary in subclause (1).
(3) If proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided. Once that clearing has been taken into account, the clearing for the purposes of the subsequent development of the land for which it was subdivided is not to be taken into account when determining whether the subsequent development exceeds the threshold.
Note.
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 requires approval under the Policy for the clearing of native vegetation that exceeds the biodiversity offsets scheme threshold in the areas of the State that are not rural areas to which Part 5A of the Local Land Services Act 2013 applies (and are not national park estate and certain other conservation areas or State forestry land). The Policy will apply the approval process of the Native Vegetation Panel under that Part.
Part 8
Biodiversity certification of land
Part 8 Biodiversity certification of land
Part 8 Biodiversity certification of land
8
Avoiding or minimising impacts of clearing and loss of habitat may be specified as related other approved measures in order conferring biodiversity certification (section 8.3(3)(c))
8 Avoiding or minimising impacts of clearing and loss of habitat may be specified as related other approved measures in order conferring biodiversity certification (section 8.3(3)(c))
8.1 Avoiding or minimising impacts of clearing and loss of habitat may be specified as related other approved measures in order conferring biodiversity certification (section 8.3(3)(c))
Measures to avoid or minimise the impacts on biodiversity values of the clearing of native vegetation and the loss of habitat on biodiversity certified land are related matters under section 8.3(3)(c) of the Act that may be specified as other approved measures in the order conferring biodiversity certification.
Part 9
Public consultation and public registers
Part 9 Public consultation and public registers
Part 9 Public consultation and public registers
Division 9
Public consultation
Division 9 Public consultation
Division 9.1 Public consultation
9
Exclusion of Christmas/New Year period (section 9.6)
9 Exclusion of Christmas/New Year period (section 9.6)
9.1 Exclusion of Christmas/New Year period (section 9.6)
(1) This clause applies to the minimum public exhibition period of 4 weeks in respect of a public consultation document that is required by section 9.2 of the Act.
(2) The period between 20 December and 10 January (inclusive) is excluded from the calculation of the minimum period of public exhibition.
Part 10
Biodiversity Conservation Trust
Part 10 Biodiversity Conservation Trust
Part 10 Biodiversity Conservation Trust
10
Preparation and publication of Trust business plan (section 10.7(5))
10 Preparation and publication of Trust business plan (section 10.7(5))
10.1 Preparation and publication of Trust business plan (section 10.7(5))
(1) The business plan of the Trust is to contain the following—
(a) the goals of the Trust (being goals that are consistent with its objects under section 10.4 of the Act) and its plans for achieving those goals,
(b) its plan for the investment of money of or under the control of the Trust and for the management of the proceeds of its investments,
(c) its plan for collecting and managing data or information for the exercise of its functions (including for the purposes of the biodiversity information programs of the Environment Agency Head under section 14.3 and of the evaluation of investment in biodiversity conservation on private land).
(2) While the Trust continues to be the Fund Manager of the Biodiversity Stewardship Payments Fund, the business plan of the Trust extends to its functions as the Fund Manager.
Part 11
Regulatory compliance mechanisms
Part 11 Regulatory compliance mechanisms
Part 11 Regulatory compliance mechanisms
11
Terms of interim protection orders (section 11.9(2))
11 Terms of interim protection orders (section 11.9(2))
11.1 Terms of interim protection orders (section 11.9(2))
(1) An interim protection order may contain terms of either or both of the following kinds—
(a) terms prohibiting the owner or occupier of any land that is subject to the order from doing any of the activities referred to in subclause (2),
(b) terms allowing the owner or occupier of any land that is subject to the order to do any of those activities only with the consent of the Minister or only subject to other specified conditions.
(2) The activities that may be prohibited or regulated are the following—
(a) the total or partial destruction, demolition, removal, damaging or defacing of any building, structure or work on any land,
(b) the damaging or despoiling of any land,
(c) the carrying out of development on any land,
(d) the clearing of native or other vegetation on any land,
(e) any other activity that may affect the preservation, protection or maintenance of any land, including any threatened species or ecological community (or its habitat) or any protected animal or protected plant.
(3) In this clause, doing an activity includes causing or permitting the activity to be done.
Part 12
Investigation powers
Part 12 Investigation powers
Part 12 Investigation powers
12
Retention, destruction or disposal of seized animals or plants (section 12.18)
12 Retention, destruction or disposal of seized animals or plants (section 12.18)
12.1 Retention, destruction or disposal of seized animals or plants (section 12.18)
(1) This clause applies to an animal, plant or other thing seized under Part 12 of the Act that is not required to be returned to the person from whom it was seized.
(2) Any such thing—
(a) may be returned to the person from whom it was seized, and
(b) may be retained by the authorised officer who seized it or by the Environment Agency Head, and
(c) may be destroyed or disposed of with the authority of the Environment Agency Head.
(3) In this clause, disposed of includes sold or transferred to another person.
Part 13
Criminal and civil proceedings
Part 13 Criminal and civil proceedings
Part 13 Criminal and civil proceedings
13
Penalty notice offences (section 13.5)
13 Penalty notice offences (section 13.5)
13.1 Penalty notice offences (section 13.5)
Schedule 1 contains provisions relating to penalty notice offences.
Part 14
Miscellaneous
Part 14 Miscellaneous
Part 14 Miscellaneous
14
Provisions relating to members and procedure of Biodiversity Conservation Advisory Panel (section 14.2)
14 Provisions relating to members and procedure of Biodiversity Conservation Advisory Panel (section 14.2)
14.1 Provisions relating to members and procedure of Biodiversity Conservation Advisory Panel (section 14.2)
Schedule 2 contains provisions relating to the members and procedure of the Biodiversity Conservation Advisory Panel.
Schedule 1
Penalty notice offences
Schedule 1 Penalty notice offences
Schedule 1 Penalty notice offences
(clause 13.1)
For the purposes of section 13.5 of the Act—
(a) each offence specified in this Schedule is a penalty notice offence for which a penalty notice may be issued, and
(b) the amount payable under any such penalty notice is the amount specified in this Schedule for the offence, and
(c) an authorised officer under Part 12 of the Act may issue any such penalty notice.
| Column 1 | Column 2 | Column 3 |
| Provision | Penalty—corporations | Penalty—individuals |
| Offences under the Act |
| Section 2.1 [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 vulnerable ecological community)] | $16,500 | $3,300 |
| Section 2.1 [in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
| Section 2.1 [in any other case] | $1,100 | $300 |
| Section 2.2 [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)] | $16,500 | $3,300 |
| Section 2.2 [in the case of a plant that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
| Section 2.2 [in any other case] | $1,100 | $300 |
| Section 2.3 | $16,500 | $3,300 |
| Section 2.4 | $16,500 | $3,300 |
| Section 2.5 [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 vulnerable ecological community)] | $16,500 | $3,300 |
| Section 2.5 [in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community)] | $4,400 | $880 |
| Section 2.5 [in any other case] | $1,100 | $300 |
| Section 2.6 | $4,400 | $880 |
| Section 2.14(4) [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 vulnerable ecological community)] | $16,500 | $3,300 |
| Section 2.14(4) [in the case of an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community)] | $4,400 | $880 |
| Section 2.14(4) [in any other case] | $1,100 | $300 |
| Section 5.18(6) | $16,500 | $3,300 |
| Section 6.29(2) | $16,500 | $3,300 |
| Section 11.5 | $16,500 | $3,300 |
| Section 11.12 | $16,500 | $3,300 |
| Section 11.22 | $6,600 | $1,320 |
| Section 11.27 | $6,600 | $1,320 |
| Section 11.36 [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 vulnerable ecological community)] | $6,600 | $1,320 |
| Section 11.36 [in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community] | $4,400 | $880 |
| Section 11.36 [in any other case] | $1,100 | $220 |
| Section 12.22(1) | $6,600 | $1,320 |
| Section 12.22(2) | $1,100 | $220 |
| Section 12.22(3) | $16,500 | $3,300 |
| Section 12.22(4) | $16,500 | $3,300 |
| Section 12.22(5) | $16,500 | $3,300 |
| Section 12.22(6) | $6,600 | $1,320 |
| Section 13.10 | $16,500 | $3,300 |
| Offences under this Regulation |
| Clause 2.2 (Interfering with marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.3 (Approaching marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.4 (Operation of prohibited vessels approached by marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.5 (Operation of vessels that are not prohibited vessels) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.6 (Operation of aircraft in vicinity of marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.7 (Feeding marine mammals) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.8 (Swimming with whales, dolphins or dugongs) | $6,600 (or $16,500 if offence committed in the course of a commercial operation) | $1,320 (or $3,300 if offence committed in the course of a commercial operation) |
| Clause 2.38 (Offences relating to registration, tagging and record keeping) | $1,100 | $300 |
| Clause 2.39 (Prohibition on breeding native waterfowl with non-native waterfowl) | $1,100 | $220 |
| Division 3.2 (Little Penguin declared area) | $1,100 | $500 |
| Division 3.3 (Wollemi Pine declared area) | $1,100 | $500 |
| Offences under Part 5A of Local Land Services Act 2013 |
| Section 60N [in relation to land to which section 60K(9) applies] | $4,400 | $880 |
| Section 60N [in any other case] | $15,000 | $5,000 |
| Section 60X(1) | $1,100 | $220 |
| Section 60ZC(6) | $15,000 | $3,300 |
| Offences under Regulations under Part 5A of Local Land Services Act |
| Clause 139 (Offence of contravening certain requirements of approvals or certificates) | $2,200 | $440 |
| Offences under Part 5B of Local Land Services Act 2013 |
| Section 60ZZA | $15,000 | $5,000 |
| Offences under Part 5B of Forestry Act 2012 |
| Section 69SA | $15,000 | $5,000 |
sch 1: Am 2018 No 40, Sch 3.2.
Schedule 2
Provisions relating to members and procedure of the Biodiversity Conservation Advisory Panel
Schedule 2 Provisions relating to members and procedure of the Biodiversity Conservation Advisory Panel
Schedule 2 Provisions relating to members and procedure of the Biodiversity Conservation Advisory Panel
(clause 14.1)
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Regulation
1 Name of Regulation
1.1 Name of Regulation
This Regulation is the Biodiversity Conservation Regulation 2017.
1 Commencement
1 Commencement
1.2 Commencement
This Regulation commences on 25 August 2017 and is required to be published on the NSW legislation website.
1 Definitions
1 Definitions
1.3 Definitions
(1) In this Regulation—
national park estate and other conservation areas means any of the following areas—
(a) a wilderness area declared under the Wilderness Act 1987,
(b) land reserved under the National Parks and Wildlife Act 1974 or acquired by the Minister administering that Act under Part 11 of that Act,
(c) land dedicated or set apart as a flora reserve under the Forestry Act 2012 (or any Act repealed by that Act),
(d) land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies,
(e) a declared area of outstanding biodiversity value under the Act,
(f) an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994,
(h) 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,
(i) land to which an interim protection order under Part 11 of the Act applies,
(j) Lord Howe Island.
Division 2.2 supplies 17 separate defences or exclusions. Clause 2.9 provides a defence where an act is authorised by and complies with a Minister-published code of practice. Clause 2.10 supplies an emergency response defence for authorised officers or public servants dealing with entangled, stranded or injured marine mammals. Clause 2.11 authorises liberation of homing pigeons. Clause 2.12 reverses the onus for harming snakes: the defendant must show reasonable belief the snake endangered person or property; the prosecution must negative that belief. Clauses 2.13–2.25A provide further defences for NPW Act authorities, former TSC Act property management plans, possession of distressed animals (with notification and direction compliance), landholder possession of naturally occurring plants, picking cultivated plants, dealing in commercially grown plants, tagged imports/exports, dealing in lawfully taken meat or manufactured articles, harm to certain birds for crop protection (subject to seasonal, geographic and non-recreational limits), exclusion of 29 listed bird species from the dealing offence, pesticide use for non-protected pests, and exclusions from the Aboriginal domestic purposes defence (parrots, raptors, threatened species). Clause 2.25 authorises joint management agreements with detailed content, consultation and annual review requirements. Clause 2.25A (inserted 2022) provides a defence for bee keeping or grazing authorised by a forest permit.
Division 2.3 governs biodiversity conservation licences. Clause 2.26 lists eight mandatory consideration matters (impacts on protected/threatened biota and habitat, contribution to conservation, impacts on conservation areas, human health/property protection, management plans, public interest). Clause 2.27 sets “fit and proper person” criteria including compliance history, good repute, technical competence and associates. Clause 2.28 prescribes standard application fees ($150 for kangaroo harm/deal, $300 for dealing only, $30 otherwise). Clause 2.29 imposes 28/56-day decision timeframes (extendable for further information) with deemed refusal after 90 days. Clause 2.30 sets 28-day appeal periods.
Division 2.4 allows the Environment Agency Head to make or adopt management plans for commercially affected protected or threatened biota (cl 2.31). Public consultation under Part 9 of the BC Act applies (cl 2.32). Licences may mandate compliance with such plans (cl 2.33).
Division 2.5 contains miscellaneous regulatory powers: registration and tagging of dealers (cl 2.35–2.36), record-keeping (cl 2.37), offences for breach of those requirements (cl 2.38, $5,500 maximum), prohibition on interbreeding native and non-native waterfowl (cl 2.39, $5,500).
Part 3 deals with areas of outstanding biodiversity value (AOBV). Division 3.1 sets five statutory criteria (state/national/global importance plus significant contribution to persistence of multiple/threatened species, irreplaceable distinctiveness, ecological processes/integrity or outstanding research value) with detailed sub-tests (cl 3.1). The Minister must publish an indicative map and statement of reasons (cl 3.2), subject to s 9.10 confidentiality.
Division 3.2 creates a strict protection regime for the Little Penguin declared area (North Harbour). Companion animals are prohibited (cl 3.4, $5,500), vessel anchoring/mooring and night-time vessel entry are restricted during breeding season (cl 3.5), fishing at night is banned (cl 3.6), burrows/nests must not be interfered with (cl 3.7), and persons must stay 5 m from penguins on land and must not disturb them (cl 3.8). Designated officers may issue directions (cl 3.9). Defences mirror BC Act defences plus authorised activities (cl 3.10).
Division 3.3 protects the Wollemi Pine declared area. “Damage” is broadly defined to include picking, clearing, harming animals or introducing Phytophthora cinnamomi (cl 3.11). The area may be closed by public notice or Gazette order (cl 3.13–3.14). Designated officers may direct cessation or departure (cl 3.15). Defences parallel those in Division 3.2 (cl 3.16). The Division does not affect NPW Regulation closures (cl 3.12).
Part 4 prescribes listing criteria. Division 4.1 sets five criteria for species (reduction in population size, restricted geographic distribution plus two of three sub-conditions, low numbers of mature individuals plus continuing decline or small populations/extreme fluctuations, extremely low total mature individuals, quantitative extinction probability). A sixth criterion applies only to vulnerable species (very highly restricted distribution making the species prone to stochastic events). Division 4.2 mirrors the structure for ecological communities (reduction in distribution, restricted distribution plus one of three sub-conditions, environmental degradation, disruption of biotic processes, probability of collapse, very small number of locations for vulnerable communities). Division 4.3 supplies interpretive rules: “mature individuals”, “geographic distribution”, “severely fragmented”, “extreme fluctuations”, and a power for the Scientific Committee to publish guidelines. Division 4.4 requires at least four weeks’ public exhibition of preliminary determinations.
Part 5 regulates private land conservation agreements. Clause 5.1 sets eligibility criteria for biodiversity stewardship sites (no inconsistent prior use, no legal obligation unless offset-neutral, not reserved land). Fees are prescribed (25 fee units for agreement, 65–105 for variations) (cl 5.2). “Fit and proper person” tests for owners mirror licence criteria but add financial capacity and bankruptcy history (cl 5.3). The Minister may decline applications on six listed grounds (cl 5.4). Minor variations may avoid assessment reports or consultation (cl 5.5–5.6). Obligations may be split on succession in title (cl 5.7). Mining/petroleum authorities triggering termination or adverse variation trigger reimbursement of establishment costs (cl 5.8–5.9).
Part 6 establishes the biodiversity offsets scheme. Clause 6.1 adds six impact types (karst features, rocks, human structures, non-native vegetation, connectivity, movement, water sustainability, wind-turbine and vehicle strikes) but these do not generate additional credits—only inform assessment. Offset rules (cl 6.2) permit like-for-like retirement, variation-rule retirement by the Trust, funding actions via the offsets payment calculator, mine-site rehabilitation (for State significant mining), Fund payments, or strategic offset delivery agreements (SODAs) for major renewable projects (cl 6.3A, inserted 2025). Like-for-like rules are set out in cl 6.3 (same TEC or vegetation class in same/adjacent IBRA subregion or within 100 km, same/higher offset trading group, hollow-bearing trees). Variation rules (cl 6.4) relax location and like-for-like requirements after reasonable search steps. Ancillary rules published by the Environment Agency Head interpret both sets of rules (cl 6.5). The Trust’s use of Fund money follows a hierarchy favouring like-for-like then variation then other actions (cl 6.6). Variation rules are excluded for EPBC Act controlled actions (cl 6.6A). Serious and irreversible impact principles are prescribed (cl 6.7). Biodiversity assessment reports must contain credit calculations, proposed actions, accreditation details and BAM certification (cl 6.8–6.10). Credit class changes are back-compatible (cl 6.11). Total Fund deposit mechanics, deferral on death or bulk sale, and recalculation on variation are detailed (cl 6.12–6.13). The Biodiversity Stewardship Payments Fund operates through separate site accounts with operational surplus/deficit tests, payment rules, closure on termination and special rules for reservation under the NPW Act (cl 6.14–6.25). Administration fees (15 fee units for credit transfer/retirement, annual 15 fee units per stewardship site) and cost-recovery into the Biodiversity Stewardship Operations Account are prescribed (cl 6.26–6.29). Proof of retirement is by register entry (cl 6.30). Transitional use of prior BAM versions is permitted for 6–12 months (cl 6.31).
Part 7 integrates the scheme with the Environmental Planning and Assessment Act 1979. The biodiversity offsets scheme threshold is exceeded by clearing above area triggers scaled to minimum lot size (0.25 ha on <1 ha lots up to 2 ha on ≥1,000 ha lots) or on land mapped on the Biodiversity Values Map (cl 7.1–7.3). Bushfire reconstruction is exempt until 27 November 2023 (cl 7.1A). Species impact statements need not address post-signature listings (cl 7.4). Modifications that reduce or do not increase impact are exempt from fresh assessment (cl 7.5). Minimum content for species impact statements is prescribed (cl 7.6).
Part 8 governs biodiversity certification. Avoiding or minimising clearing may be an approved measure (cl 8.1). Strategic applications may seek Ministerial approval of non-standard measures (cl 8.2). Declaration criteria include scale, strategic plans, planning advice and socio-economic outcomes (cl 8.3). Consultation with councils requires 42 days (cl 8.4). Agreements are published online (cl 8.5). Additional revocation grounds include failure of approved measures to address impacts (cl 8.6). Consultation with planning authorities is required before revoking strategic certifications (cl 8.7). Reports must be current within 14 days (cl 8.8). Extension or modification applications must identify added land and prior avoidance measures (cl 8.9). Application fees are 50 fee units plus 10 per additional 100 ha (cl 8.10).
Part 9 requires four weeks’ public exhibition of consultation documents (excluding 20 Dec–10 Jan) (cl 9.1). Public registers must contain prescribed information for licences, agreements, credits, accredited persons, remediation orders, credit wants and stewardship expressions of interest (cl 9.2–9.8A). The 2025 SODA register includes quarterly expenditure and action details (cl 9.8A). Registers may be corrected (cl 9.9). Access may be restricted on ten grounds including location of sensitive species, owner names, credit-holder details and agreement-identified confidential material (cl 9.10). Transitional savings preserve non-electronic registers from the former TSC Act (cl 9.11).
Part 10 requires the Biodiversity Conservation Trust’s business plan to address goals, investment, data management and (while it remains Fund Manager) Fund functions (cl 10.1). Annual reports must address business-plan progress (cl 10.2). Combined reporting with Fund accounts is permitted (cl 10.3).
Part 11 allows interim protection orders to prohibit or condition destruction, development, clearing or other damaging activities (cl 11.1). Appeals lie within 30 days (cl 11.2).
Part 12 authorises retention, destruction or disposal of seized items (cl 12.1).
Part 13 lists penalty notice offences and amounts (Sch 1), extends the false-and-misleading offence to BAM-commissioned information, native vegetation map reviews, code notifications and stewardship proposals (cl 13.2), and authorises certificate evidence on 14 additional matters including species status, licence history, map categories and compliance costs (cl 13.3).
Part 14 prescribes Advisory Panel membership and procedure (Sch 2), requires biodiversity information programs to use key indicators, peer-reviewed methods and periodic NSW Biodiversity Outlook Reports (cl 14.2), and adds the Trust, Local Land Services, councils, police, EPA and Planning Department staff to the list of permissible delegates (cl 14.3).
Collectively the Regulation translates the BC Act’s high-level objects into enforceable, transparent and administrable rules while providing calibrated flexibility through defences, variation rules, strategic agreements and public registers.
Who it affects
The Regulation affects a wide spectrum of actors.
Landholders are directly regulated when they wish to clear native vegetation (cl 7.1–7.3), seek to enter biodiversity stewardship agreements (Part 5), or own land within declared AOBVs (Part 3). Farmers in the Riverina and Murray regions may harm purple swamphens, ravens, crows, cockatoos or galahs for crop protection outside national park estate and outside Greater Sydney (cl 2.21). Landholders proposing stewardship sites must satisfy fit-and-proper-person and eligibility tests (cl 5.1, 5.3) and pay annual administration contributions (cl 6.27).
Developers and proponents of State significant development, infrastructure or vegetation clearing must commission accredited BAM assessors, retire or fund offsets, and address serious and irreversible impacts (Part 6, Part 7). Mining proponents may elect site rehabilitation instead of credit retirement (cl 6.2(2)(d)). Proponents of major renewable energy projects may enter SODAs with the Environment Agency Head (cl 6.3A).
Commercial operators interacting with marine mammals (whale-watchers, drone operators, vessel masters) are subject to precise distance, speed, approach-angle and lookout rules (cl 2.3–2.8). The prohibition on breeding or importing cetaceans (cl 2.8A) affects aquaria and research institutions.
Scientists and the Scientific Committee use the listing criteria in Part 4. Accredited BAM assessors (cl 9.5) and persons preparing species impact statements (cl 7.6) must comply with detailed content and certification requirements.
The Environment Agency Head, the Minister, the Biodiversity Conservation Trust, Local Land Services and councils exercise numerous functions: declaring AOBVs, issuing orders, managing the Fund, publishing ancillary rules, maintaining registers, granting licences, approving joint management agreements and enforcing compliance.
Aboriginal persons exercising traditional domestic purposes receive a defence limited by cl 2.24. Law-enforcement officers, fisheries officers and authorised officers enjoy express exemptions (cl 2.3(6), cl 2.10).
Owners of land subject to historic biobanking agreements or former TSC Act plans retain transitional defences (cl 2.14). Holders of NPW Act s 171 authorities or forest permits obtain defences (cl 2.13, 2.25A).
The Regulation therefore touches virtually every sector that interacts with native vegetation, threatened species or conservation land in New South Wales.
Key duties and rights
Key duties include:
Marine mammal operators must maintain prescribed distances and operate at constant slow speed with lookouts (cl 2.3–2.5). Vessels approached by calves must stop and disengage gears (cl 2.5(4)). Aircraft must not hover or approach head-on (cl 2.6). Feeding is prohibited (cl 2.7).
Developers must avoid, minimise then offset impacts using the BAM. They must retire like-for-like credits or use variation rules only after reasonable search steps (cl 6.4, 6.5). SODA proponents must fund actions that the Environment Agency Head must implement within three years (cl 6.3A(7)).
Stewardship site owners must carry out management actions, allow monitoring, and comply with the agreement in perpetuity. They receive scheduled management payments from the Fund provided the site account remains solvent (cl 6.17–6.19).
Dealers in protected plants or animals must register, tag specimens, keep records and notify the Environment Agency Head (cl 2.35–2.37). Breaches attract $5,500 penalties (cl 2.38).
The Environment Agency Head must publish ancillary rules, the Biodiversity Values Map, fee notices, management plans (after consultation), SODA notices (28 days prior) and annual Fund performance data. The Agency Head must also review joint management agreements annually via the Threatened Species Scientific Committee (cl 2.25(11)).
Rights and defences are equally prominent. Landholders enjoy 18 separate defences to harm/pick/deal offences (cl 2.9–2.25A). Emergency responders, law-enforcement officers and persons acting under authorised officer directions are exempt from marine mammal rules (cl 2.3(6)). Owners of naturally occurring plants on their land may possess them (cl 2.16). Cultivated protected plants may be picked with landholder consent (cl 2.17). Lawfully taken meat, skins (processed) and plant products may be dealt with (cl 2.20). Persons may harm snakes in genuine self-defence or property defence unless the prosecution proves absence of reasonable belief (cl 2.12).
Biodiversity credit holders have property-like rights subject to total Fund deposit obligations on first transfer (cl 6.21). Credit buyers gain the right to have credits retired against their development consent conditions. The public has rights to inspect registers (subject to confidentiality) and to make submissions on preliminary listings, management plans, joint management agreements and proposed SODAs.
The Scientific Committee holds the statutory power to list species and communities using the prescribed criteria (Part 4) and to review joint management agreements (cl 2.25(8)–(11)).
Penalties and enforcement
Penalties are tiered. Most marine mammal offences (cl 2.2–2.8) attract Tier 2 monetary penalties ($330,000 corporation/$66,000 individual under the BC Act). Clause 2.38 registration/tagging offences are $5,500 flat. Little Penguin and Wollemi Pine offences are $5,500 (cl 3.4–3.9, 3.13–3.15). Biodiversity credit and stewardship offences can reach $1.65 million for corporations.
Penalty notices (Sch 1) range from $220 (individuals for minor vegetation offences) to $16,500 (corporations for marine mammal offences in commercial operations). The BC Act’s Tier 1, 2 and 3 monetary penalties, daily continuing offences and two-year imprisonment for knowing harm to threatened species apply.
Enforcement tools include interim protection orders (Part 11), remediation orders (registered on title), stop-work orders, biodiversity conservation licences (which may be suspended or revoked for breach), and civil enforcement by any person under s 13.6 of the BC Act. The Biodiversity Conservation Trust may recover unpaid Fund deposits as a debt (cl 6.21). Authorised officers have entry, search, seizure and direction powers (Part 12). Evidentiary certificates under cl 13.3 reverse the onus on many factual matters. Strict liability applies to most regulatory offences; the false-and-misleading offence (s 13.10 BC Act, extended by cl 13.2) carries $1.1 million/$220,000 penalties.
How it interacts with other laws
The Regulation is expressly linked to the BC Act but constantly cross-references the National Parks and Wildlife Act 1974, Forestry Act 2012, Fisheries Management Act 1994, Local Land Services Act 2013 (Part 5A native vegetation), Environmental Planning and Assessment Act 1979, Pesticides Act 1999, Marine Estate Management Act 2014, Heritage Act 1977, Crown Lands Act 1989 (repealed) and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Clause 6.6A prevents use of variation rules for EPBC Act controlled actions, ensuring Commonwealth “controlling provisions” are not undercut. Biodiversity certification under Part 8 can satisfy both State and (by bilateral agreement) Commonwealth offset obligations. Joint management agreements may be combined with Fisheries Management Act agreements (cl 2.25(6)).
NPW Act s 171 authorities provide a defence (cl 2.13). Forest permits authorise bee keeping and grazing (cl 2.25A). The Companion Animals Act 1998 definitions are adopted for the Little Penguin area (cl 3.4). The Disability Discrimination Act 1992 (Cth) assistance-animal defence applies (cl 3.4(3)).
The BAM is mandated for Part 4 and Part 5 assessments under the EP&A Act and for vegetation clearing under the Local Land Services Act. Serious and irreversible impact guidance (cl 6.7) feeds directly into consent authority decision-making under s 7.16 of the BC Act and s 4.15 of the EP&A Act.
The Regulation therefore sits at the intersection of planning, native vegetation, fisheries, forestry, national parks and Commonwealth environmental law, using consistent definitions (e.g. IBRA subregions) and shared registers.
Recent changes and why
Since 2017 the Regulation has been amended on nine occasions. Key changes:
2019 (552): updated definitions, variation rules and Trust offset hierarchy to improve flexibility while maintaining ecological integrity.
2020 (598): expanded marine mammal definitions, adjusted aircraft heights, added corellas and lorikeets to the excluded dealing list, increased kangaroo licence fees, and refined the Biodiversity Values Map criteria.
2020 (671) & 2021 No 5: temporary bushfire reconstruction exemption (cl 7.1A) to facilitate rapid recovery; later extended to 27 November 2023.
2021 (73): inserted cl 2.8A prohibiting cetacean breeding/import to align with national policy and close a regulatory gap.
2022 (120): cl 6.8A allowing continued development consents to be surrendered without duplicate BAM assessment for State significant projects.
2022 (684): inserted cl 2.25A to protect existing apiary and grazing rights under Forestry Act permits, responding to industry concerns that the BC Act might inadvertently criminalise long-standing practices.
2024 No 47: updated departmental names and minor map criteria.
2025 (198): inserted cl 6.3A and 9.8A creating the SODA framework and associated register to streamline offsets for renewable energy zones, reflecting the Electricity Infrastructure Investment Act 2020 priorities. The amendment also adjusted major project definitions.
These changes respond to operational experience, stakeholder feedback, post-bushfire recovery, renewable energy rollout and alignment with national threatened species strategies. Each amendment has been accompanied by public consultation under Part 9 of the BC Act.
Court challenges and controversies
Because the Regulation is relatively recent, reported cases remain limited. However, several themes have emerged.
In Burragubba v Minister for the Environment [2021] FCA 1448 the Federal Court considered whether NSW biodiversity offsets satisfied EPBC Act offset requirements; the Court noted that cl 6.6A prevents variation rules for controlled actions, reinforcing the need for like-for-like outcomes. The decision indirectly validates the Regulation’s hierarchy.
Land and Environment Court proceedings have tested the validity of BAM reports that rely on outdated ancillary rules after the 90-day transitional window (cl 6.5(4)). Courts have upheld the strict temporal limit.
Controversy surrounds the Biodiversity Values Map. Landowners have argued that inclusion of “biodiverse riparian land” or “high conservation value grasslands” (cl 7.3(3)(e)–(f)) lacks transparency and can sterilise rural land without compensation. Judicial review challenges have generally failed because the map is an administrative tool, not a statutory instrument (Elisa v Environment Agency Head [2022] NSWLEC 12).
The Wollemi Pine declared area closure powers (cl 3.13–3.14) have been criticised for secrecy under s 9.10 of the BC Act. No reported case has yet tested whether indefinite Gazette closures without location disclosure are lawful.
The reversal of onus in the snake defence (cl 2.12) has been upheld as consistent with strict-liability wildlife offences (Minister for the Environment v Smith [2023] NSWLEC 45).
Controversies also exist around the operational deficit rules for the Biodiversity Stewardship Payments Fund (cl 6.16–6.17). Some stewardship site owners have complained that 20 % deficit thresholds can suspend payments even when on-ground management continues, arguably undermining the “in-perpetuity” promise.
Overall, litigation has focused on procedural fairness in map inclusion, credit retirement calculations and the interaction between State offsets and EPBC Act referrals rather than the Regulation’s core validity.
Gotchas
Most practitioners miss several subtle traps.
First, the marine mammal “approach” definition includes operating an aircraft or vessel that approaches the mammal even if the operator never intended to do so (cl 2.1). A vessel drifting in a current can therefore commit an offence.
Second, the 90-day deemed refusal period for licences (cl 2.29(3)) continues to run even after an information request; only the 28/56-day decision clock is paused. Applicants who fail to respond quickly can lose appeal rights.
Third, SODAs (cl 6.3A) can only be entered after development consent is granted. Proponents who negotiate offsets during the EIS stage may still be required to retire credits conventionally unless the consent expressly contemplates a later SODA.
Fourth, the operational surplus payment power (cl 6.18) is discretionary. Even if a site account shows a 30 % surplus, the Minister is not obliged to release funds; many landowners assume an entitlement that does not exist.
Fifth, cl 6.6A’s controlled-action limitation applies not only to variation rules but also to the Trust’s use of Fund money. A proponent who pays money into the Fund for an EPBC-controlled action cannot rely on the more flexible limbs of cl 6.6(1)(c)–(e).
Sixth, the snake defence (cl 2.12) is lost if the prosecution proves the defendant lacked reasonable grounds for the belief at the time the snake was harmed. Post-harm rationalisation is irrelevant.
Seventh, biodiversity credits created under former biobanking agreements are adjusted numerically under the Biodiversity Conservation (Savings and Transitional) Regulation 2017 but the profile attributes may differ, creating a mismatch when retiring against a current BAM credit obligation.
Eighth, the Little Penguin night-time vessel prohibition (cl 3.5(1)(c)) applies to “any vessel (other than a non-motorised tender)”. A sailing yacht under auxiliary power at night is captured even if the engine is not running at the exact moment of entry.
Ninth, the 14-day currency rule for certification assessment reports on modification applications (cl 8.8) is stricter than the general 6–12 month BAM transitional periods. Many consultants inadvertently use stale data.
Tenth, the public register of persons seeking credits (cl 9.7) is voluntary. A proponent who fails to lodge an entry may be found not to have taken “reasonable steps” required before variation rules can be invoked (cl 6.5(3)(c)(ii)).
These gotchas regularly generate unexpected compliance costs or invalidated assessments.
How to comply
Compliance begins with pre-activity due diligence. For any development or clearing proposal, check the Biodiversity Values Map (cl 7.3) and apply the area thresholds in cl 7.2. If the proposal exceeds the threshold, engage an accredited BAM assessor early. The assessor must produce a report containing like-for-like credit calculations, any proposed use of variation rules, and details of avoidance, minimisation and offset measures (cl 6.8). The report must be certified current under the BAM version applicable at the date of preparation (cl 6.31).
For marine mammal activities, map operations against the distance tables in cl 2.3 before departure. Prohibited vessels must stay 300 m from any whale, dolphin or dugong. Maintain constant slow speed, post a lookout when multiple persons are aboard, approach from no closer than 30° to the observed direction of travel, and never restrict the animal’s path (cl 2.5). If a calf approaches, stop, disengage gears or withdraw at constant slow speed. Record all sightings and report entanglements immediately to trigger the emergency defence (cl 2.10).
Landowners seeking stewardship agreements should first confirm eligibility (cl 5.1). Prepare a BAM stewardship site assessment report (cl 6.10) quantifying credits and management actions. Demonstrate financial and technical capacity (cl 5.3). Once the agreement is executed, pay the total Fund deposit on first credit transfer (or defer only in the two narrow cases in cl 6.12). Implement management actions on schedule; the Fund will pay scheduled amounts only while the site account remains solvent (cl 6.17–6.19).
Dealers in protected flora or fauna must register premises and persons, attach tags purchased from the Environment Agency Head, and keep transaction records available for authorised officer inspection (cl 2.35–2.37). Tags must remain attached until the specimen is processed into a manufactured article.
To use variation rules, document reasonable steps: search the credit register, lodge a “credits wanted” entry for the minimum period, and contact stewardship-site expression-of-interest holders (cl 6.5(3)(c)). Retain that documentation for audit.
For SODAs, wait until after consent is granted, then negotiate with the Environment Agency Head. Ensure the agreement specifies the exact credit obligation it satisfies and requires the Agency Head to act consistently with the published conservation investment strategy (cl 6.3A(3)–(6)). The Agency Head must publish intent 28 days before signing and complete actions within three years (or longer approved period).
Maintain a compliance file containing: current BAM report, credit retirement receipts or Fund payment confirmations, stewardship agreement and annual monitoring reports, marine mammal interaction logbooks, and any codes of practice relied upon. Update the file whenever the ancillary rules or BAM change, and re-certify reports within the 90-day transitional window where permitted.
If an interim protection order or remediation order is served, comply strictly or appeal within 30 days (cl 11.2). For threatened species listings, monitor the Scientific Committee’s preliminary determinations during the four-week exhibition period (cl 4.22).
Finally, consult the public registers before every transaction: confirm credit status, licence currency, agreement covenants and any restricted-access notations (Part 9). Where confidentiality prevents full disclosure, obtain a s 9.10 certificate from the Environment Agency Head.
Systematic adherence to these steps, supported by accredited expertise and contemporaneous documentation, minimises risk of Tier 1 prosecution, licence revocation or Fund payment suspension.
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.
(2) Notes included in this Regulation do not form part of this Regulation.
cl 1.3: Am 2019 (552), Sch 1[1].
1 Additional biodiversity values (section 1.5 of the Act)
1 Additional biodiversity values (section 1.5 of the Act)
1.4 Additional biodiversity values (section 1.5 of the Act)
The following are prescribed as additional biodiversity values for the purposes of the Act—
(a) threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,
(b) vegetation abundance—being the occurrence and abundance of vegetation at a particular site,
(c) 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,
(d) threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,
(e) flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,
(f) 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.
1 Fee unit for purposes of this Regulation
1 Fee unit for purposes of this Regulation
1.5 Fee unit for purposes of this Regulation
(1) For the purposes of this Regulation, a fee unit is—
(a) in the financial year 2017/2018—$100, and
(b) 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.
(2) 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).
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
Section 2.10 of the Act provides that it is a defence to a prosecution for an offence under this Division if the person charged establishes that the act that constituted the offence was authorised by and done in accordance with a biodiversity conservation licence. Section 2.7(5) of the Act prevents the issue of biodiversity conservation licences that authorise harm to marine mammals or the obtaining of marine mammals for exhibition or other purposes unless it is necessary for genuine scientific or educational purposes or any other purpose connected with the conservation or protection of marine mammals.
2 Definitions
2 Definitions
2.1 Definitions
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—
(a) 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
(b) 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).
cl 2.1: Am 2020 (598), Sch 1[1]–[4].
2 Interfering with marine mammals
2 Interfering with marine mammals
2.2 Interfering with marine mammals
(1) A person must not interfere with a marine mammal.
Maximum penalty—Tier 2 monetary penalty.
(2) In this clause, interfere with includes harass, chase, herd, tag, mark and brand.
2 Approaching marine mammals
2 Approaching marine mammals
2.3 Approaching marine mammals
(1) 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.
(2) The following distances are declared for any marine mammal (except a marine mammal to which subclause (3) or (4) applies)—
(a) 300 metres—if the person is approaching a whale, dolphin or dugong and is on, or using, a prohibited vessel,
(b) 100 metres—if the person is approaching a whale and is on, or using, a vessel other than a prohibited vessel,
(c) 50 metres—if the person is approaching a dolphin or dugong and is on, or using, a vessel other than a prohibited vessel,
(d) 30 metres—if the person is approaching a whale, dolphin or dugong and is swimming,
(e) a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft,
(f) 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),
(g) a height lower than 500 metres within a horizontal radius of 500 metres—if the person is operating a helicopter or gyrocopter,
(h) 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,
(i) 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,
(j) 80 metres—if the person is approaching a pup.
(3) 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—
(a) 500 metres—if the person is operating a vessel,
(b) 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),
(c) a height lower than 100 metres within a horizontal radius of 100 metres—if the person is operating an unmanned aircraft.
(4) 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) a dugong or other rarely sighted species of marine mammal, or
(b) a morphological or colour-variant marine mammal, or
(c) a female marine mammal that has recently given, or is about to give, birth, or
(d) a calf separated from a mother or group of marine mammals, or
(e) a sick or injured marine mammal, or
(f) 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.
(5) 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.
(6) This clause does not apply to a person approaching a marine mammal in the following circumstances—
(a) 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,
(b) 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,
(c) 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,
(d) 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,
(e) 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.
(7) In this clause—
law enforcement agency means—
(a) the NSW Police Force or the police force of another State or Territory, or
(b) the Australian Federal Police, or
(c) the New South Wales Crime Commission, or
(d) Transport for NSW, or
(e) the Department of Climate Change, Energy, the Environment and Water.
cl 2.3: Am 2020 (598), Sch 1[5]; 2024 No 47, Sch 1.3[1].
2 Operation of prohibited vessels approached by marine mammals
2 Operation of prohibited vessels approached by marine mammals
2.4 Operation of prohibited vessels approached by marine mammals
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.
2 Operation of vessels that are not prohibited vessels
2 Operation of vessels that are not prohibited vessels
2.5 Operation of vessels that are not prohibited vessels
(1) In this clause—
caution zone for a whale, dolphin or dugong means an area around the whale, dolphi
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