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The information contained in this fact sheet is current as at 21 April 2008

Topic 5 – Biodiversity Conservation

5.1. Species Protection

The New South Wales and Commonwealth governments both have laws to protect flora (plants) and fauna (animals).

Key laws for the protection of species and ecological communities in New South Wales include the Threatened Species Conservation Act 1995, the National Parks and Wildlife Act 1974 and the Fisheries Management Act 1994.

The Native Vegetation Act 2003, through its focus on habitat protection, also has a key role in species protection (see Fact Sheet 4.4 – Vegetation Management).

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the main Commonwealth law in this area. The protected species provisions of this legislation apply to:

• flora and fauna within areas controlled or owned by the Commonwealth;
• flora or fauna that may be harmed by the actions of a Commonwealth agency; and
• actions that may have a significant effect on species on the national threatened species list.

5.1.1. New South Wales Species Protection Law

The Threatened Species Conservation Act 1995, National Parks and Wildlife Act 1974 and Fisheries Management Act 1994 are the most important state laws in relation to protected species.

The Fisheries Management Act protects freshwater and saltwater fish and invertebrates and saltwater plants. The Department of Primary Industries (DPI) is responsible for protection of marine species. Marine protected species are discussed in more detail below.

The Threatened Species Conservation Act and National Parks and Wildlife Act protect other plants and animals (including whales, dolphins and seals). The Department of Environment and Climate Change (DECC) has a lead role in the protection of protected species.

These laws:

• create a range of offences relating to protected species;
• impose obligations concerning threatened species on developers and consent authorities during the development assessment process; and
• empower DECC and the Minister for the Environment to issue certain orders to protect threatened species in the short-term; and
• require DECC and other public authorities to take certain long-term actions to protect threatened species.

Threatened Species, Populations and Ecological Communities

The Threatened Species Conservation Act protects certain species, populations and ecological communities when they are at a particular level of endangerment. These are known collectively as ‘threatened species, populations and ecological communities’ and include:

• endangered species;
• critically endangered species
• vulnerable species.
• endangered populations;
• endangered ecological communities; and
• vulnerble ecological communities

Protected Fauna and Flora

• protected fauna – includes most fauna species except animals such as dogs, cats, cows, horses and rabbits; and
• protected flora – includes native plant species, primarily those that are commonly used for ornamental purposes, such as the waratah .

Key Threatening Processes

The Threatened Species Conservation Act also contains provisions in relation to 'key threatening processes'. These are processes which either adversely affect threatened species, populations or ecological communities, or could cause species, populations or ecological communities that are not threatened to become threatened. Key Threatening Processes are the ‘trigger’ for threat abatement planning, a broader but unfortunately largely discretionary approach to species protection under the Threatened Species Conservation Act.

Critical Habitat

The Minister administering the Threatened Species Conservation Act may declare that the habitat of an endangered species, population or ecological community is critical habitat. This will lead to the application of certain protective mechanisms discussed below.

To date, only two areas in New South Wales have been declared critical habitat under the Act: Sydney’s North Harbour for the little penguin population there and Stotts Island Nature Reserve for the Mitchell's Rainforest Snail.

Species Protection Listing

The Threatened Species Conservation Act establishes a Scientific Committee responsible for determining whether a species, population, ecological community or threatening process should be inserted or omitted from Schedules 1, 2 or 3. The Scientific Committee may list a species, population or ecological community on its own initiative or may make a determination following a request by the Minister or nomination of any other person.

Schedules 11 of the National Parks and Wildlife Act, which lists unprotected fauna, can be amended by the Governor by notice published in the Gazette. Schedule 13, protecting flora, may also be amended by the Governor.

Threatened Species Nominations

Members of the public can nominate a species, population or ecological community to be protected under the Threatened Species Conservation Act. The nomination process is quite technical and you will need detailed evidence to support your nomination. For more information about the nomination and listing processes contact the Environmental Defender’s Office. The validity of the determination of a nomination can be challenged in court, but only within 6 months of its publication.

Emergency listings are possible and the Scientific Committee is responsible for determining whether a species will be provisionally listed on an emergency basis. A species is eligible for provisional listing as an endangered species if the species, although not previously known in New South Wales, is believed to be indigenous to New South Wales or the species was presumed to be extinct and has been rediscovered. Anyone may nominate a species to be listed provisionally and the application must contain any information prescribed by the regulations.

Species Protection Offences

Under the National Parks and Wildlife Act, it is an offence:

• to harm or do anything with the purpose of harming any animal which is a threatened species, population or ecological community ('harm' has its everyday meaning, except that it does not include harming an animal by changing its habitat);
• to harm any animal or use any device for the purposes of harming any animal that is fauna within a wildlife district, wildlife refuge, wildlife management area, conservation area, wilderness area or any area subject to a wilderness protection agreement;
• to pick any plant which is a threatened species, population or ecological community ('pick' means to gather, pluck, cut, pull up, destroy, poison, dig up, remove or injure);
• to pick any plant within a wildlife district, wildlife refuge, wildlife management area, conservation area, wilderness area or any area subject to a wilderness protection agreement;
• to buy, sell, possess or control any plant or animal that is a threatened species or part of an endangered population;
• to do anything or fail to do something which causes damage to a critical habitat;
• if a person knows that an area of land is the habitat of a threatened species, population or ecological community, to do something or fail to do something which causes damage to that habitat;
• to harm or do anything with the purpose of harming protected fauna;
• to buy, sell, possess or control any protected fauna;
• to import or export any protected fauna into or out of New South Wales; and
• to pick, possess or sell a protected native plant.

Only a person authorised by the Director-General of the DECC or a member of the police force can bring prosecutions under these Acts. If you think someone is unlawfully interfering with threatened fauna or flora, report it to the DECC.

Defences to Protected Species Offences

A range of defences may apply in relation to certain species protection offences. For example, a person has a defence against the offence of harming or picking a threatened species, population or ecological community if they:

• have a development consent under the Environmental Planning and Assessment Act and the action in question was essential to carry out development in accordance with that development consent;
• have a licence to harm or pick a threatened species, population or ecological community under the Threatened Species Conservation Act or a licence to harm protected fauna under the National Parks and Wildlife Act and were complying with that licence;
• were carrying out an activity authorised by the Rural Fires Act 1997;
• were carrying out a routine agricultural management activity; or
• were carrying out an action in accordance with a property vegetation plan.

For more detailed information regarding defences against each specific offence, refer to the relevant statutory provisions outlining the offence (contained in footnotes above) or contact the Environmental Defender’s Office.

Stop Work Orders

The Director-General of the DECC may issue a stop work order under the National Parks and Wildlife Act if they believe that an action is being carried out or is about to be carried out that is likely to significantly affect protected fauna or flora or their environment. These stop work orders are valid for up to forty days and may be extended at the discretion of the Director-General.

There are some exceptions to this. For example, a stop work order cannot be issued if the action in question is essential to carry out development under a development consent issued under the Environmental Planning and Assessment Act.

The Director-General may issue a stop work order under the Threatened Species Conservation Act if they believe that an action is being carried out or is about to be carried out that is likely to:

• harm a listed threatened species, population or ecological community;
• damage listed critical habitat; or
• damage the habitat of listed threatened species, population or ecological community.

This type of stop work order is valid for forty days and may be extended at the discretion of the Director-General.

Interim Protection Orders

The Director-General of the DECC may recommend to the Minister for the Environment that an interim protection order be made in respect of land:

• which has, in the Director-General’s opinion, natural, scientific or cultural significance; or
• on which the Director-General intends to exercise any of his or her powers under the National Parks and Wildlife Act or the Threatened Species Conservation Act relating to fauna, native plants, threatened species, populations or ecological communities or critical habitat; or
• that is critical habitat or the habitat of a threatened species, population or ecological community.

The Minister may, after considering a recommendation, make an interim protection order in respect of the area of land. The terms which may be included in the order are set out in the National Parks and Wildlife Regulation 2002 and include terms in relation to the protection of the area or land and its flora and fauna.

Interim protection orders are valid for a maximum of two years.

Threatened Species and Development Consent

New South Wales laws do not protect threatened species as of right. Rather, the laws generally set up administrative procedures and principles to guide decision-making in relation to threatened species.

Under the Environmental Planning and Assessment Act, a consent authority can grant a development consent which will adversely affect threatened wildlife.

There are two ways in which this can happen. The first is that the development takes place under an Environmental Planning Instrument, e.g. a local environmental plan, that is biodiversity certified. In this case, the Environmental Planning Instrument specifies the procedures that have to be undertaken before the consent authority may allow the harming of threatened species or ecological communities (a). Should this not be the case, the Act itself requires certain procedures to be followed before the consent authority can decide whether or not to grant the consent (b).

a) Biodiversity Certification

The Minister may issue a biodiversity certification for an Environmental Planning Instrument if he is satisfied that it will lead to the “overall improvement or maintenance of biodiversity values”. Biodiversity in this context includes threatened species, populations and communities as well as their habitats. There are numerous factors such as “principles of ecologically sustainable development” the Minister has to take into account in reaching his decision. A certification proposal is subject to public exhibition and submissions have to be considered.

The effect of a biodiversity certification is that development under a certified EPI is taken not to “be likely to have a significant impact” on threatened species, populations or ecological communities, thereby discharging the need for a Species Impact Statement under the Environmental Planning and Assessment Act (see below).
Certificates are only issued for a specified time; if the Minister does not make a specification, they are valid for 10 years. They also have to be reassessed following every review of the EPI they apply to under the Environmental Planning and Assessment Act or if any rezoning takes place.

b) Assessment under the Environmental Planning and Assessment Act

If a development is proposed on land that is critical habitat or the development is likely to significantly affect a threatened species, population or ecological community or its habitat and this land is not covered by a biodiversity certified Environmental Planning Instrument:

• the developer must submit a species impact statement (SIS) with their development application, prepared in accordance with the Threatened Species Conservation Act;
• the consent authority must consider, when deciding whether to grant the consent, how the development will affect that critical habitat and whether a threatened species, population or ecological community or its habitat is likely to be significantly affected; and
• the consent authority cannot, as a general rule, grant consent without first getting agreement from the Director-General of the DECC.

Planning authorities must have regard to the register of critical habitat when exercising their functions under the Environmental Planning and Assessment Act and they must have regard to recovery plans and threat abatement plans when making decisions.

Recovery Plans

The DECC may prepare a recovery plan for each endangered species, population and ecological community. Currently there are 60 recovery plans for species listed as ‘threatened’ and 13 for species listed as ‘vulnerable’.

Recovery plans must also be prepared for vulnerable species. These recovery plans must be prepared with five years of the species being listed in Schedule 2.

If a plan is prepared, it has tocomply with requirements set out in the Threatened Species Conservation Act, including an obligation to provide public notice of the preparation of a draft recovery plan, to invite public submissions on the draft and to consider those submissions when preparing the final recovery plan.

Ministers and public authorities are to take any appropriate action available to them to implement measures included in a recovery plan and must not make decisions that are inconsistent with the provisions of a recovery plan.

Threat Abatement Plans

The Threatened Species Conservation Act 1995 allows for key threatening processes to be identified. These currently include:

• alteration to the natural flow regimes of rivers, streams, floodplains and wetlands;
• bushrock removal;
• clearing of native vegetation;
• competition and grazing by feral rabbits;
• competition and habitat degradation by feral goats;
• competition from feral honeybees;
• death or injury to marine species following capture in shark control programs on ocean beaches;
• ecological consequences of high frequency fires;
• entanglement in or ingestion of anthropogenic debris in marine and estuarine environments;
• predation, habitat degradation, competition and disease transmission by feral pigs;
• human-caused climate change;
• importation of red imported fire ants into NSW;
• infection by Psittacine circoviral (beak and feather) disease affecting endangered psittacine species and populations;
• infection of frogs by amphibian chytrid causing the disease chytridiomycosis;
• infection of native plants by Phytophthora cinnamomi;
• introduction of the large earth bumblebee, Bombus terrestris;
• invasion of native plant communities by bitou bush and boneseed;
• invasion of native plant communities by exotic perennial grasses;
• loss and/or degradation of sites used for hill-topping by butterflies;
• predation by feral cats;
• predation by the European red fox;
• predation by the plague minnow (Gambusia holbrooki);
• predation by the ship rat on Lord Howe Island; and
• removal of dead wood and dead trees.

The DECC may also prepare a threat abatement plan for each key threatening process in order to manage the effects of each threatening process.

Threat abatement plans must be prepared in accordance with requirements set out in the Threatened Species Conservation Act, including an obligation to provide public notice of the preparation of a draft threat abatement plan, to invite public submissions on the draft and to consider those submissions when preparing the final threat abatement plan.

Ministers and public authorities are to take any appropriate action available to them to implement measures included in a threat abatement plan and must not make decisions that are inconsistent with the provisions of a threat abatement plan.

Responding to Breaches of Species Protection Law

As discussed above, only the police or a person authorised by the Director-General can commence criminal legal proceedings for an offence committed under either the Threatened Species Conservation Act or the National Parks and Wildlife Act.

However, if you think that the Threatened Species Conservation Act or the National Parks and Wildlife Act has been breached, you can take civil action in the Land and Environment Court. Any person can commence a proceeding in the court to remedy or restrain a breach of the Act. You may also take action in the Land and Environment Court to remedy a breach of the Environmental Planning and Assessment Act (for example, if you think that someone is acting outside the terms of their development consent).

In addition, any person may bring a judicial review proceedings in the Land and Environment Court on the basis that a decision maker, such as the consent authority or the DECC, failed to follow correct legal procedures under the Threatened Species Conservation Act, the National Parks and Wildlife Act or the Environmental Planning and Assessment Act.

5.1.2. Commonwealth Protected Species Law

The key federal legislation in relation to protected species is the Environment Protection and Biodiversity Conservation Act, which protects species and ecological communities by:

• creating a process for the listing of protected species and ecological communities;
• requiring the assessment and approval of proposals that are likely have a significant impact upon a threatened species, an ecological community or a migratory species; and
• requiring permits for actions in a Commonwealth area that involve the killing, injuring or taking of a listed threatened species, or ecological community.

Federal protected species law operates in parallel to state protected species law. A development or activity may require assessment or approval under state and federal protected species law.

Threatened Species and Ecological Communities

The Environment Protection and Biodiversity Conservation Act protects listed threatened species and ecological communities. Threatened species is a general term which includes the following categories:

• 'extinct' – there is no reasonable doubt that the last member of the species has died;
• 'extinct in the wild' – the species is not recorded in its expected habitat, and is only known to occur in cultivation or captivity;
• 'critically endangered' – with an extremely high risk (50%) of extinction in the wild in the immediate future;
• 'endangered' – with a very high risk (20%) of extinction in the wild in the near future;
• 'vulnerable' – with a high risk (10%) of extinction in the wild in the medium-term future; and
• 'conservation dependent' –the species will become vulnerable within five years if a current conservation plan ceases.

In addition to the probability of extinction, the Regulations to the EPBC Act set out other criteria to guide whether a threatened species should be added to the list including:

• the reduction in numbers of the species;
• the reduction in the distribution of the species; and
• the total number of adults of the species and the rate of decline of this number.

The list of threatened species and ecological communities is available on the Department of Environment, Water, Heritage and the Arts website at: http://www.environment.gov.au/biodiversity/threatened/

Migratory Species

The Environment Protection and Biodiversity Conservation Act protects listed migratory species. The listed migratory species must include (and are limited to) any migratory species listed under the JAMBA Convention, the CAMBA Convention or the Bonn Convention.

The list of protected migratory species is available on the Department of Environment, Water, Heritage and the Arts website at: http://www.environment.gov.au/biodiversity/migratory/list.html

Marine Species

The Environment Protection and Biodiversity Conservation Act protects listed marine species. Listed marine species includes such things as sea snakes, eared seals, ‘true’ seals, crocodiles, dugongs, marine turtles and sea horses.

The list of protected marine species is available on the Department of Environment, Water, Heritage and the Arts website at: http://www.environment.gov.au/coasts/publications/identification-guide/index.html

The Environment Protection and Biodiversity Conservation Act also provides specific protection for whales, dolphins and porpoises.

Threatened Species Listing

Any person can nominate a threatened species or ecological community for listing under the Act. If you wish to do this you will need to do some research. This does not necessarily mean that you need to be a scientist and do field research, but you will need to locate and describe the research that has been done.

There are various environmental groups who may be able to assist you with this. There may also be people within Government departments and agencies who can help. The Environmental Defender’s Office can help direct you to the most appropriate person.

The nominations are made to the Minister. Nominations have to:

• specify the scientific and common names of the species (or if it is a new species it has to include additional information);
• specify the category that you believe the species should be in and why you think this; and
• provide a description of how the species meets the criteria specified in the Environment Protection and Biodiversity Conservation Regulations 2000 for inclusion in that category.

When the Minister receives the nomination he or she must forward it to the Scientific Committee within ten business days. The Scientific Committee must provide advice to the Minister within twelve months (or such longer time as the Minister allows).

When the Minister receives the advice from the Scientific Committee, he or she has 90 days to make a decision on adding the nominated species or ecological community to the list. In making a decision, the Minister must not consider any matter that does not relate to the survival of the species or ecological community. If the Minister decides against the nomination, the Minister must advise the person who made the nomination and provide a statement of reasons.

The Scientific Committee is a body created under the Act. The composition of the Committee and the qualifications of its members are determined by the Minister. These details are available from the Department of Environment, Water, Heritage and the Arts.

Threatened species nomination forms and guidelines are available from the Department of Environment, Water, Heritage and the Arts website at: http://www.environment.gov.au/epbc/

Critical Habitat Listing

There is no set process to nominate an area as critical habitat. The Minister makes the decision to register an area as critical habitat. Before doing so, the Minister must seek the advice of the Scientific Committee.

At present, the following areas are listed as critical habitat under the EPBC Act:

• Diomedea exulans (Wandering Albatross) - Macquarie Island;
• Manorina melanotis (Black-eared Miner) - Taylorville Station and Calperum Station;
• Thalassarche cauta (Shy Albatross) - Albatross Island, The Mewstone, Pedra Branca; and
• Thalassarche chrysostoma (Grey-headed Albatross) - Macquarie Island.

You could write to both the Minister and the Committee requesting that an area be registered as critical habitat. The following criteria are relevant to whether land is critical habitat and, if they support your nomination, you should address the criteria in your letter:

• whether the habitat is used during periods of stress such as flood, drought or fire;
• whether the habitat is used to meet essential life cycle requirements such as foraging, breeding, nesting, roosting, social behaviour patterns or seed dispersal;
• the extent to which the habitat is used by important populations of the species;
• whether the habitat is necessary to maintain genetic diversity and long-term evolutionary development;
• whether the habitat is necessary for use as corridors to allow the species to move freely between sites used to meet essential life cycle requirements;
• whether the habitat is necessary to ensure the long-term future of the species or ecological community through reintroduction or re-colonisation; and
• any other way in which habitat may be critical to the survival of a listed threatened species or a listed threatened ecological community.

If the land is not a Commonwealth area, the Minister is required to consult with the owner of the land prior to declaring the land as critical habitat. Where possible, you should try to obtain the support of the landholder for the nomination.

Key Threatening Process Listing

Under the Act, the Minister must establish a list of key threatening processes. This is defined as a process that threatens the survival, abundance or evolutionary development of a native species or ecological community and that could cause that species or ecological community to become eligible to be listed as threatened, or move to a more seriously threatened category on the list.

There is no set process to nominate something as a key threatening process. The Minister makes the decision after getting advice from the Scientific Committee. Listing a key threatening process may lead to the development of a threat abatement plan.

The following processes are currently identified:

• competition and land degradation by feral goats;
• competition and land degradation by feral rabbits;
• dieback caused by the root-rot fungus (Phytophthora cinnamomi);
• incidental catch (bycatch) of sea turtles during coastal otter-trawling operations within Australian waters north of 28 degrees South;
• incidental catch (or bycatch) of seabirds during oceanic longline fishing operations;
• infection of amphibians with chytrid fungus resulting in chytridiomycosis;
• injury and fatality to vertebrate marine life caused by ingestion of, or entanglement in, harmful marine debris;
• land clearance;
• loss of climatic habitat caused by anthropogenic emissions of greenhouse gases;
• predation by feral cats;
• predation by the European Red Fox (Vulpes vulpes);
• predation, habitat degradation, competition and disease transmission by feral pigs;
• Psittacine Circoviral (beak and feather) disease affecting endangered psittacine species; and
• reduction in the biodiversity of Australian native fauna and flora due to the red imported fire ant, Solenopsis invicta (fire ant).

Species Protection and Environmental Assessment

Actions that are likely to have a significant impact on threatened species or ecological communities or migratory species cannot proceed without assessment and approval by the Commonwealth Environment Minister.

For more information on federal environmental assessment processes, see Fact Sheet 2.2 – Commonwealth Environmental Assessment Law.

Species Protection Offences

It is an offence to kill, injure, take, trade, keep or move a member of a listed species (threatened, migratory or marine) in or on a Commonwealth area without a permit. To ‘trade’ includes buying, selling or exporting the listed plant or animal.

It is an offence for a person to significantly damage critical habitat in a Commonwealth area.

It is an offence to kill, injure, take or trade a cetacean (whale, dolphin or porpoise) in the Australian Whale Sanctuary. The Australian Whale Sanctuary extends to the boundary of Australia’s exclusive economic zone, which is up to 200 nautical miles from the coast of Australia. It does not generally include coastal waters up to the three nautical mile limit.

Outside the Australian Whale Sanctuary, that is, anywhere else in the world, it is an offence for specified people to kill, injure, take or trade a whale. This offence applies to Australian citizens and residents, corporations incorporated in Australia or an external Territory, the Commonwealth and Commonwealth agencies, Australian aircraft and vessels, and members of crews of Australian aircraft and vessels.

Species Protection Permits

Permits can be issued by the Commonwealth Environment Minister if he or she is satisfied that the action will contribute significantly to the conservation of the species, or the impact on the species is incidental and the taking will not adversely affect the survival or recovery of the species and is not inconsistent with any recovery plan.

The Department of Environment, Water, Heritage and the Arts administers a Consultation Register on which any member of the public can be included. Persons on the Register receive notification of permits relating to protected species. To be included on the Register, contact the Department. Decisions of the Minister relating to permits can be appealed to the Administrative Appeals Tribunal.

Recovery Plans

The Act requires that the Environment Minister develop recovery plans for listed threatened species and wildlife conservation plans for listed migratory and marine species and cetaceans, and to consider whether a threat abatement plan is needed to protect listed threatened species. Currently there are 320 recovery plans that have already been adopted.

A recovery plan is a plan that the Minister must develop within a specified time in relation to every listed threatened species. The purpose of the plan is to maximise the long-term chances of survival of a threatened species.

A recovery plan must, among other things:

• state the objectives to be achieved;
• state criteria against which achievement of the objectives are to be measured;
• specify the actions needed to achieve the objectives;
• identify the location of the species or ecological communities for which it is made;
• identify threats to the species;
• identify habitats that are critical to the survival of the species;
• identify important populations of the species or ecological communities that are necessary for their long-term survival and recovery;
• identify interests that will be affected by the plan’s implementation; and
• identify any areas that are affected by a threatening process.

Wildlife Conservation Plans

A wildlife conservation plan is very similar to a recovery plan. The main difference is that, where a recovery plan applies to threatened species, a wildlife conservation plan may be developed for:

• listed migratory species;
• listed marine species;
• cetaceans; and
• species that are not endangered or vulnerable, but have been identified as ‘conservation dependent’.

Threat Abatement Plans

A threat abatement plan is a plan that the Minister may develop in order to maximise the long-term chances of survival of a threatened species by key threatening processes.

The listing of a key threatening process does not automatically require the development of a threat abatement plan. The Minister must determine within 90 days whether having and implementing a threat abatement plan is a ‘feasible, effective and efficient’ way to address the process. There are no criteria to guide this decision. Prior to making the decision the Minister is required to consult with:

• the Threatened Species Scientific Committee;
• any State or Territory that would be affected or interested; and
• any Commonwealth, State or Territory agency that would be affected or interested.

There is no requirement to consult the public. If the Minister decides that a threat abatement plan is not the most feasible way to address the process, he or she must publish their reasons and reconsider the matter within five years.

A threat abatement plan must, among other things:

• state the objectives to be achieved;
• state criteria against which achievement of the objectives is to be measured;
• specify the actions needed to achieve the objectives;
• state in what areas the actions specified in the plan most need to be taken for threat abatement;
• specify any listed threatened species, critical habitat or any other native species that is likely to be adversely affected by the key threatening process;
• identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and
• specify any major ecological matters that will be affected by the plan’s implementation.

It is not an offence for an individual to breach a recovery or threat abatement plan. The plans simply guide Government action.

In particular:

• a Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan; and
• the Commonwealth must implement a recovery plan or threat abatement plan, to the extent to which it applies in Commonwealth areas.

Conservation Orders

The Minister for the Environment may issue a conservation order to protect listed species or ecological communities in Commonwealth areas. Such an order can restrict particular activities in Commonwealth areas, or require that specific actions be taken. The Minister must consult the Department of Environment, Water, Heritage and the Arts and have regard to economic and social considerations in making a decision whether to make a conservation order.

Responding to Breaches of Commonwealth Protected Species Law

The Commonwealth Department of Environment, Water, Heritage and the Arts is responsible for enforcing federal protected species law. If you are aware that the law is being breached, the cheapest and often the most effective way of enforcing the law is to notify the Department of any suspected breach.

The Minister has various enforcement powers, including the power:

• to bring a civil prosecution;
• to request the Director of Public Prosecutions to bring a criminal prosecution;
• to apply for an injunction to prevent a breach;
• to suspend, revoke, vary or amend an approval.

However, the government is not under a duty to take action to enforce the law. If the government is not enforcing the law, you may wish to take the following steps:

• Find out whether the person has a permit or approval to take the action. If so, you should get a copy of it to check whether the approval or permit holder is complying with the conditions.
• Write to the person who is taking, or about to take the action, as soon as possible. Point out to them as clearly as possible how and why their actions are in breach of the Act. Alternatively, you may wish to ask the EDO to write on your behalf.
• Report the matter in writing immediately to the Department of Environment, Water, Heritage and the Arts. Send a copy of the report to the Minister. The Department has accredited investigators who can investigate alleged breaches.
• Take photos or videos of any activity (without trespassing) so that you have evidence of what is happening.

If none of these steps work or if the matter is urgent, any ‘interested person’ can apply to the Federal Court of Australia for an injunction, if they think that the Act has been, or is about to be breached.

An 'interested person' is an individual or organisation that has been involved in a series of activities to protect the environment for the past two years or more. In the case of an organisation, the objects of the organisation must include the protection of the environment.

It is important not to delay when applying for an injunction, so act quickly.

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