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Last updated: 24 November 2008
6.1 Threatened species and ecological communities
1 Overview
Key to terms used in this Fact Sheet
Act means the Threatened Species Conservation Act 1995
Commonwealth Environment Department means the Commonwealth Department of Environment, Water, Heritage and the Arts
DECCW means the NSW Department of Environment, Climate Change and Water
Director-General means the Director-General of the NSW Department of Environment, Climate Change and Water5
EPI means an environmental planning instrument, which is a local environment plan or a state environmental planning policy
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environment Minister means the NSW Minister for Climate Change and the Environment
FM Act means the Fisheries Management Act 1994
LEC Act means the Land and Environment Court Act 1979
LEP means a local environment plan
NPW Act means the National Parks and Wildlife Act 1974 (NSW)
NPWS means the NSW National Parks & Wildlife Service, now called the Parks and Wildlife Group within the NSW Department of Environment, Climate Change and Water.
SIS means a species impact statement
Threatened species offences means those offences regarding threatened species, populations and ecological communities set out in Part 8A of the NPW Act.
TSC Act means the Threatened Species Conservation Act 1995 (NSW).
Where a section but no Act is referred to in this Fact sheet, the relevant Act is the Threatened Species Conservation Act 1995.
According to the International Union for the Conservation of Nature's (IUCN) Red List of Threatened Species (released in October 2008), Australia now has the highest rate of species extinction of any developed nation. Almost one in five of our mammal species are facing extinction and there are currently 788 Australian plants and animals which are listed as threatened.1
NSW and the Commonwealth both have laws protecting threatened species.
1.1 NSW threatened species laws
In NSW, threatened species are protected under three different Acts which work in conjunction with each other. These are:
The Threatened Species Conservation Act 1995, which deals with the listing of species, the declaration of critical habitat, recovery plans, threat abatement plans, licencing, biodiversity certification and biobanking;
The National Parks and Wildlife Act 1974, which contains additional licencing provisions, and provisions for criminal offences; and
The Environmental Planning and Assessment Act 1979, which imposes obligations on developers and consent authorities to assess and consider the impacts on threatened species during the development assessment process (eg by requiring a species impact statement in some circumstances).
Remember that a threat-ened species or ecological community can be protected under both NSW law and Commonwealth law at the same time if the species is considered to be threat-ened nationally. For example, the Grey-headed Flying-fox is listed as a vulnerable species under the TSC Act (NSW) (Sch 2), and is also listed as a vulnerable species under the EPBC Act.
If you are concerned about a particular species, you should check both the NSW and Commonwealth threat-ened species databases.
Threatened fish (both saltwater and freshwater) and their habitat, and threatened marine vegetation, are protected under the Fisheries Management Act 1994.
There are many native species of flora (plants) and fauna (animals) which, although not threatened, still have some degree of legal protection. These are protected under the NPW Act: for more information, see Fact sheet 6.2 on Protecting native animals and plants.
Habitat loss through land clearing and development is one of the key threatening processes leading to loss of biodiversity in NSW. Land clearing in general is controlled under the Native Vegetation Conservation Act: see Fact sheet 5.3.
Which government department is responsible?
The National Parks and Wildlife Service ( NPWS ), within the Department of Environment, Climate Change and Water, is responsible for protecting threatened species in NSW. DECCW administers both the TSC Act and the NPW Act.
The Minister for Climate Change and the Environment is responsible for both the TSC Act and the NPW Act. Although the Planning Minister administers the EPA Act, the Environment Minister (or the NPWS Director-General) has an important concurrence (agreement) role under the EPA Act for all developments which are likely to significantly affect threatened species.
Species and ecological communities which are threatened on a national basis are protected under the Commonwealth Environment Protection and Biodiversity Conservation Act ( EPBC Act ).
The EPBC Act protects:
Fauna and flora on land controlled or owned by the Commonwealth2
Fauna and flora that may be harmed by the activities of the Commonwealth or a Commonwealth agency,3 and
Nationally listed threatened species or community which might be significantly impacted by an activity or development.4
This fact sheet does not deal with Commonwealth threatened species legislation: see instead Fact sheet 3.3 on Commonwealth threatened species law.
Environmental & Planning Law in New South Wales, by Lyster, Lipman, Franklin, Wiffen and Pearson, The Federation Press (2007), Chapter 8 Conserving Biodiversity, pp 318 - 339.
The Environmental Law Handbook, Farrier and Stein, eds, 4 th ed, Redfern Legal Centre Publishing, (2006), Chapter 11, Biodiversity conservation, pp 420 – 432.
2 Listing threatened species
The TSC Act is the main legislation protecting threatened species in NSW. The Act commenced operation on 1 January 1996. The Act and Threatened Species Conservation Regulations 2002 contain a comprehensive framework for listing threatened species.
2.1 Eligibility for listing
In NSW, the following things can be listed:
Individual species
Populations
Ecological communities.
These things can be listed under the TSC Act once they reach a particular level of endangerment (eg vulnerable, endangered, critically endangered). All of the listings are collectively known as “threatened species, populations and ecological communities”, or are often just referred to as “threatened species”.
The lists of threatened species, populations and communities are available on the internet.
Individual species can be listed under the TSC Act as:
Presumed extinct
not recorded in its known or expected habitat within its lifecycle (s 6(4), 10(1), listed in Sch 1, Part 4)
Critically endangered
facing an extremely high risk of extinction in NSW in the immediate future (s 6(4A), 10(2), listed in Sch 1, Part 1A)
Endangered
facing a very high risk of extinction in the near future (s 6 (1), 10(3), listed in Sch 1, Part 1)
Vulnerable
facing a high risk of extinction in the medium-term future (s 7(1), 10(4), listed in Sch 2, Part 1).
2.1.2 Populations
Individual populations, or pockets, of species can be listed as an “endangered population” under the TSC Act (s 6(2), Sch 1, Part 2).
A population is eligible to be listed if it is facing a very high risk of extinction in the near future (s 11(1)). The population cannot be listed if the species is already listed as endangered, critically endangered or presumed extinct (s 11(2)). Note: individual populations cannot be listed under the Commonwealth EPBC Act.
Examples of endangered populations include (Sch 1, Part 2):
The Emu population in the NSW North Coast bioregion and the Port Stephens area
The Gang-gang Cockatoo population in the Hornsby and Ku-ring-gai areas
The Little Penguin in the Manly Point Area (see also TSC Regs 2002, cll 5 – 12)
The Long-nosed Bandicoot at North Head
Koalas at Hawks Nest and Tea Gardens
Koalas at Pittwater
2.1.3 Ecological communities
Ecological communities can be listed as:
Critically endangered ecological community
Facing an extremely high risk of extinction in the immediate future (s 6(4B), 12(1), listed in Sch 1A, Part 2)
Endangered ecological community
Facing a very high risk of extinction in the near future (s 6(3), 10(2), and Sch 1, Part 3), or
Vulnerable ecological community
Facing a high risk of extinction in the medium-term (s 7(2), 12(3), listed in Sch 2, Part 2).
2.2 Procedure for listing
2.2.1 Who can initiate action for listing?
Any person can nominate a species, population or ecological community for listing (or omission) under the TSC Act (s 19(1), (2)). The nomination must follow the process set out in the TSC Act (s 19(5)). The Scientific Committee can also list a species, population or ecological community on its own initiative.
The nomination process is quite technical. If you wish to nominate a species yourself you will need detailed evidence to support your nomination. There are some conservation groups who are experienced in preparing nominations for threatened species. If you think a particular species, population or ecological community should be listed, and you want help, you could contact:
The Scientific Committee, established under the TSC Act, is responsible for deciding whether to list a particular species, population or ecological community (s 17, 128).
The process is as follows:
When the Committee receives a nomination, it must make a preliminary determination as to whether the proposal should be supported
If so, the Committee must then make a final determination within 6 months of calling for submissions on its preliminary determination (s 23)
Before making a final determination, the Scientific Committee must refer the proposed nomination to the Environment Minister. The Environment Minister cannot veto the nomination, but can refer it back to the Committee for further consideration on scientific grounds (s 23A).
Final determinations are published in the NSW Government Gazette (s 24(1)(d)). The validity of a final determination can only be challenged in the Land and Environment Court within 6 months of the determination appearing in the Gazette (s 24(4)).
2.2.3 Emergency listings
The Scientific Committee can list a species on an emergency basis by giving it a provisional listing (s 27).
A species can be provisionally listed as endangered or critically endangered if it can be shown that it probably existed at some time in NSW, or if it was presumed extinct but has been rediscovered (s 28). Anyone can nominate a species to be listed provisionally (s 30(1)).
2.3 What are the implications of listing?
Once a species, population or ecological community has been listed, it can trigger the following actions:
The NPWS Director-General can prepare a recovery plan for it (see below)
The NPWS must identify critical habitat if the species, population or ecological community is endangered or critically endangered, which can then be declared as such by the Environment Minister (see below)
A person who harms (animals) or picks (plants) the threatened species will commit an offence unless they have a licence or other form or authorisation (see below)
Developments which are likely to significantly affect the threatened species or its critical habitat will require a species impact statement (see below).
2.3.1 Critical habitat
Once a species, population or ecological community is listed as endangered or critically endangered, the NPWS must take steps to identify the habitat that is critical to its survival.
The Environment Minister is responsible for declaring critical habitat, on advice from the NPWS Director-General (s 37- 47). A declaration of critical habitat and a map showing its location must be published in the NSW Government Gazette, and copies given to all affected landholders, public authorities and mortgagees (s 47(3), 48, 53, 54).
The Director-General must keep a public register of all critical habitat (s 55).
If an area of land is declared as critical habitat, it means that:
The Environment Minister cannot confer biodiversity certification over those areas of land in an LEP or SEPP;
Planning authorities (such as local councils) must have regard to the register of critical habitat when deciding whether to grant development consent (TSC Act, s 50(b), and EPA Act, s 5B);
Public authorities must consider the habitat when using land that it owns or controls (s 50);
An application for a licence to carry out activity on the land must be accompanied by a species impact statement (TSC Act, s 92(2)); and
A development application relating to that land must be accompanied by a species impact statement (EPA Act, s 78A(8)(b)).
As at November 2008, four areas in NSW have been declared as critical habitat, and another three are pending. The finalised declarations are habitat for:
the Little Penguin population in Sydney's North Harbour
the Mitchell's Rainforest Snail in the Stotts Island Nature Reserve
the Wollemi Pine
Gould's Petrel.
Click here to go to the DECCW website on critical habitat, including the public register
2.4 Threatened fish and marine vegetation
In NSW, marine species are dealt with outside the general threatened species laws. Threatened species of fresh and saltwater fish and marine vegetation are protected under the Fisheries Management Act 1994 (Part 7A).
The Department of Primary Industries is responsible for the protection of threatened fish and marine vegetation. The Minister for Primary Industry is responsible for administering most parts of the Fisheries Management Act 1994.
2.4.1 How are fish listed as threatened?
The Fisheries Scientific Committee, established under Part 7A of the Fisheries Management Act 1994, is responsible for deciding which fish species should be added to the list (FM Act, s 220G). The Minister then either accepts the nomination or refers it back to the Committee for scientific reasons (FM Act, s 220M(1)). Any person can nominate a new species for listing (FM Act, s 220H(2)(b)). The categories of threatened species, populations and ecological communities mirror those under the TSC Act.
Habitat that is critical to the survival of endangered or critically endangered marine species can be declared as critical habitat (FM Act, s 220P). The FM Act establishes a number of offences, including harming any listed marine species or damaging its habitat (FM Act, s 220ZA, 220ZD).
2.4.2 Threatened fish and development
The provisions of the EPA Act regarding the need for species impact statements apply to the critical habitat of fish and to threatened species, populations and ecological communities of fish and marine vegetation in the same way as they do to ground-dwelling threatened species (EPA Act, s 5C).
Thus, a development application which is likely to significantly affect a threatened species of fish will require a species impact statement to accompany the development application. Instead of requiring the concurrence (agreement) of the Environment Minister, the concurrence of the Minister for Primary Industries will be required (EPA Act, s 5C(2)(b)).
2.4.3 Key threatening processes for fish
Processes which threaten the survival of species can be listed under the TSC Act (Sch 3): See below.
As at November 2008, there were 32 key threatening processes listed, most of which relate to land-based activities, although there are two which relate specifically to marine species. These are:
Death or injury to marine species following capture in shark control programs on ocean beaches, and
Entanglement in or ingestion of human debris in marine and estuarine environments
2.5 Licences
DECCW does not issue licences concerning threatened fish and marine vegetation. These are issued by the Department of Primary Industries.
Case Study: Man fined for killing endangered grey nurse shark
A recreational fisher from Lake Munmorah who killed an endangered grey nurse shark two years ago was in August 2008 fined $2000 for the offence. The man pleaded guilty in Forster Local Court for taking the 1.7m long female shark off Hastings Point in June 2006.
Grey nurse sharks were listed as an endangered species in 2001 under Part 1, Schedule 4 of the Fisheries Management Act 1994, after first being declared threatened in 1984.
The fine was disappointingly low. As the proceedings were dealt with in the Local Court, the maximum fine available was $10,000. If proceedings had been commenced in the Supreme Court or the Land and Environment Court, a much larger penalty would have been possible (that is, $220,000 or two years imprisonment).6
3 Long-term planning tools to protect threatened species
3.1 Recovery plans
Once a species is listed as threatened, the Director-General can prepare a recovery plan for it although this is not mandatory. Recovery plans can be prepared for all categories of threatened species, populations and ecological communities, other than those presumed extinct (s 56).
A recovery plan must identify critical habitat for the threatened species, identify the processes which are threatening the species (eg land clearing, predation by foxes), and state what can be done to ensure the recovery of the species (s 59).
Ministers and public authorities (local councils) must take any action available to them to implement a recovery plan and must not make decisions that are inconsistent with a recovery plan (s 69). Public authorities who intend to depart from a recovery plan must notify the Director-General (s 71).
There are currently around 83 recovery plans for species listed as “endangered”, and about 16 for species listed as “vulnerable”.
Key threatening processes can be listed by the Scientific Committee under the TSC Act. They are listed in Schedule 3 of the TSC Act. A process can be listed if it could adversely affect, or cause a species, population or ecological community which is not presently threatened to become threatened (s 13). Any person can nominate a threatening process for inclusion on the list (s 19(3)).
Once a key threatening process is listed, it triggers the need for a threat abatement plan (s 74).
As at November 2008, there were 32 key threatening process listed. These include things such as:
long wall mining
alteration to the natural flows of rivers and wetlands
The listing of a key threatening process triggers the need for the Director-General to prepare a threat abatement plan (although this is not mandatory) (s 74). The plan should set out how the Director-General proposes to reduce or eliminate the threat, identify the people or public authorities responsible for implementing the plan, and give a proposed timetable (s 74(1), 77).
There are presently 3 threat abatement plans in NSW.
Ministers and public authorities must take any action available to them to implement the plan (s 86). Departures from them must be notified (s 88). Consent authorities must have regard to threat abatement plans when considering a development application (Part 4), or when a determining authority is considering an approval under Part 5.
3.4 NSW Threatened Species Priority Action Statement
Amendments to the TSC Act in 2004 require the Director-General to prepare and adopt a Threatened Species Priorities Action Statement (PAS) (s 90A – 90E). In accordance with this obligation, a Priorities Action Statement has been developed which outlines strategies to promote the recovery of each threatened species, population and ecological community and manage key threatening processes.
The PASidentifies whichrecovery and threat abatement plans DECCWwill prepare over the next three years to 2010. The PAS must be reviewed every three years (s 90B(3)).
As a general rule, actions that are likely to result in the harming or picking of threatened species must either be licenced, have development consent or biodiversity certification.
Licences regarding threatened species are issued under section 91 of the TSC Act (Part 6). It is also possible to obtain a general licence under s 120 of the NPW Act to harm or pick threatened species, but this can only be issued in strict circumstances for the welfare of an animal or if there is a threat to life or property (TSC Act, s 91(2)).
4.1 Application process
Applications for licences under the TSC Act are made to the NPWS Director-General, who is responsible for issuing licences (TSC Act, s 92(1), 99). If the activity to be licenced will take place on land that is critical habitat, the application must be accompanied by a species impact statement (TSC Act, s 92(2)). If a species impact statement is not compulsory, the NPWS Director-General can decide that one is necessary if the action is likely to significantly affect threatened species (TSC Act, s 94, 94A).
4.2 Appeals
An applicant for a licence can appeal to the Land and Environment Court (Class 1 merits) against the refusal, conditions, variation or cancellation of a licence (TSC Act, s 106(1), LEC Act, s 17(ea)). The public can also appeal against the licence if they licence had an SIS and the person made a written submission while the application was on public exhibition (TSC Act, s 106(1), 96(5)).
Appeals must be brought within 28 days (TSC Act, s 107). The licence cannot be used until the appeal period has expired (28 days), or if an appeal has been lodged, until the appeal is finally determined (TSC Act, s 108).
4.3 Public register
The Director-General must keep a public register of all licence applications (TSC Act, s 96), and licences (TSC Act, s 104).
NSW laws do not protect threatened species absolutely. Rather, the laws set up administrative procedures (such as requiring species impact statements) to guide decision-making where threatened species are concerned.
For example, under the Environmental Planning and Assessment Act 1979 (the main legislation controlling development in NSW), a consent authority can grant development consent which will adversely affect threatened species.
There are three ways in which this can happen:
The development takes place under an environmental planning instrument (eg a local environment plan) which has biodiversity certification
The developer carries out a species impact statement which accompanies its development application
The developer applies for, and is granted, a biodiversity statement under the Biobanking Scheme.
Each of these options is exclusive of the other. For example, if a development has a biobanking statement issued for it, a species impact statement will not be needed.
Cumberland Plain Wood-land pushed closer to extinction by clearing plan
A decision by Penrith City Council to approve the clearing of 300 hectares of vegetation from the Australian Defence Industries site (ADI site) near St Marys in western Sydney has pushed one of the largest fragments of the threatened Cumberland Plain Woodland further towards extinction.
Only one month before the Council granted the approval, the NSW Scientific Committee made a preliminary decision upgrading Cumberland Plain Woodland's status from endangered to critically endangered.
The Woodland provides crucial habitat for a wide range of bird and mammal species and it is only found in the Hawkesbury/Nepean and Sydney Metro catchment areas. The ADI site forms part of an important conservation corridor in Sydney's west. The primary threat facing the Woodland is currently clearing for urban or rural development and the subsequent impacts of fragmentation.
Remember that a threatened species or ecological community can be protected under both NSW law and Commonwealth law at the same time. If you are concerned about a particular species, you should check both the NSW and Commonwealth threatened species databases.
In October 2005, new provisions came into force under the TSC Act (Div 5, s 126G – 126N) allowing biodiversity certification of environmental planning instruments (EPIs).
There are two types of biodiversity certification:
Certification of EPIs (LEPs and SEPPs) (s 126G – N)(described below), and
Certification of the Native Vegetation Reform Package (s 126B – F) (see Fact Sheet 5.3).
5.1.1 Environment Minister confers certification
The purpose of permitting LEPs to be certified is to allow local councils to engage in strategic planning, thus providing greater certainty for development in areas where there are threatened species. This is particularly relevant in urban and coastal areas where there are significant development pressures on threatened species habitat.
Under the biodiversity certification provisions, the Environment Minister can confer biodiversity certification on a local environment plan or a state environment planning policy if the Minister is satisfied that the EPI “will lead to the overall improvement or maintenance of biodiversity values”, such as where an LEP retains and protects areas of habitat for threatened species (s 126G).
Certification can be limited. For example, it can be expressed to only apply to certain threatened species, or to certain types of development (s 126H). Certification cannot be granted over land which is declared as critical habitat. The certification remains in force for 10 years, unless otherwise specified (s 126J). The Minister must review the certification if an EPI is reviewed or the land is rezoned (s 126K).
The Environment Minister must have regard to certain factors in deciding whether to grant biodiversity certification, including the principles of ecologically sustainable development, and any conservation outcomes (such as an agreement to transfer land to the public parks system) (s 126G(2), (3)).
An EPI cannot be biodiversity certified unless it has been publicly exhibited and the Minister has been given all public submissions (s 126G(4)). DECCW is currently preparing Guidelines for local councils to assist them in preparing LEPs for certification. As at November 2008, only one EPI had received biodiversity certification: the State Environment Planning Policy (Sydney Region Growth Centres) 2006.
5.1.2 What is the effect of biodiversity certification?
The effect of biodiversity certification is that developments will not need to have a species impact statement. Under the biodiversity certification provisions, any development for which development consent is required (under EPA Act Part 4), or a Part 5 activity, is automatically assumed not to have a significant impact on threatened species, populations or ecological communities, thereby avoiding the need for a species impact statement (s 126I(1), (2)).
However, a licence to kill or harm threatened species may still be required if a development does not need development consent, but will still affect threatened species or their habitat.
5.1.3 Public notification and register
Within 21 days of granting biodiversity certification to an EPI, the Environment Minister must give notice to the Planning Minister, to the public on the DECCW website, and to each local council affected (s 126M). The Environment Minister must keep a public register of the grant, extension, suspension or revocation of all biodiversity certifications (s 126M(2)).
Developments which are proposed for land which is critical habitat, or which is likely to significantly affect threatened species, populations or ecological communities, must have a species impact statement. This provision does not apply if the EPI has biodiversity certification, or if a biobanking statement has been issued for the development.
The procedure for these types of developments is as follows:
The developer must submit a species impact statement (SIS) with their development application prepared in accordance with the TSC Act (EPA Act, s 78A(8)(b))
In deciding whether to grant consent, a consent authority must take into account the likely impacts of the development on threatened species and their habitat (s 79C(1)(b))
Development consent cannot be granted without the concurrence (agreement) of the Director-General of the NPWS, or if a Minister is the consent authority, unless the Minister has consulted with the Environment Minister (s 79B(3), (5)).
Planning authorities must have regard to the register of critical habitat when deciding whether to grant consent (EPA Act, s 5B), and to recovery plans (TSC Act, s 69), threat abatement plans and key threatening processes (EPA Act, s 5A(2)(f), (g)).
5.2.1 7-part test
In deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, the consent authority must take into account the 7-part test set out in s 5A(2) of the EPA Act. These factors include whether a viable local population of the species is likely to be placed at risk of extinction, whether habitat will be removed or modified, and whether habitat is likely to become fragmented or isolated from other areas.
5.2.2 Concurrence of Environment Minister
In deciding whether or not to grant concurrence (agreement), the Director-General (or the Minister) must consider a range of listed factors, including the principles of ecologically sustainable development (s 79B(5). The Environment Minister can either grant concurrence subject to conditions, or refuse concurrence (s 79B(8). The conditions of concurrence must be included in the development consent (s 79B(9)).
By agreement with the developer, the Director-General can make concurrence conditional on the developer taking certain voluntary conservation actions regarding threatened species, and those conditions become a binding part of the development consent (s 126N). For example, the Director-General can require the developer to dedicate land to be used as a national park or nature reserve, enter into a conservation agreement, require them to restore threatened species habitat, or to donate money to protect threatened species (s 126N(2)).
5.3 Biobanking statements
In 2008, the NSW Government introduced a new scheme to protect threatened species known as the Biobanking Scheme.
5.3.1 How does the Biobanking Scheme work?
Under the Scheme, an owner of land containing habitat for threatened species can have their land approved as a biobank site and can enter into a biobanking agreement with the Environment Minister for which biodiversity credits are issued in return for the landowner agreeing to protect threatened vegetation and threatened species (TSC Act, s 127D).
A developer can apply to the Director-General for a biobanking statement which will state how many biodiversity credits, and what type, the developer must buy (and retire) in order to offset the impacts on threatened species of their development (TSC Act, s 127ZK). A biobanking statement can be obtained for any development that requires development consent under Part 4 of the EPA Act (including a Part 3A project), and for any Part 5 activity (TSC Act, s 127ZJ).
Participation in the Scheme is voluntary. A developer can choose to obtain a biobanking statement in order to avoid the need to carry out a species impact statement (TSC Act, s 127ZO, 127ZP). The conditions of a biobanking statement must be incorporated into the conditions of the development consent (TSC Act, s 127ZO(2)). A biobanking statement expires after two years unless it is acted upon (TSC Act, s 127ZQ(4)). The Director-General must keep a public register of all biobanking statements (TSC Act, s 127ZZD).
5.3.2 When did the Biobanking Scheme commence?
The Scheme was created by inserting a new Part 7A (Biodiversity banking) into the Threatened Species Conservation Act 1995 which came into force on 4 December 2006.
However, in practice, the Biobanking Scheme did not commence operation until 11 July 2008 when the supporting regulations and methodologies were gazetted (TSC Act, s 127B(9)). The Threatened Species Conservation (Biodiversity Banking) Regulation 2008 and the Threatened Species Conservation (Biobanking Assessment Methodology) Order 2008 were both gazetted on 11 July 2008: NSW Government Gazette No 87, p 6898 (Regulation), and pp 7101 – 7153 (Order).
5.3.3 Biobanking Assessment Methodology
The Minister has published a very detailed methodology setting out how the likely impacts of a development are to be assessed, and how the credits required to be purchased are to be calculated, and how the offset rules will work.
Click here to go to the DECCW website on Biobanking
6 Offences and defences
The criminal offences relating to threatened species, endangered populations and endangered ecological communities are set out in Part 8A of the NPW Act, rather than in the TSC Act. The offences described below are collectively referred to elsewhere in this Fact Sheet as “threatened species offences”.
Although these offences can be enforced through either civil proceedings (Class 4, Land and Environment Court), or criminal proceedings (Class 5, Land and Environment Court), most breaches are prosecuted as criminal matters.
DECCW is responsible for bringing criminal prosecutions (NPW Act, s 179).
6.1 Offences
6.1.1 Threatened species (animals) and their habitat
It is an offence to harm any animal that is a threatened species, or which is part of an endangered population or an endangered ecological community (NPW Act, s 118A(1)). This includes harm which is caused by any substance (eg poison), animal (eg dog), firearm, net, trap or hunting device: the maximum penalty for harm to an endangered species, population or ecological community is $220,000 and/or two years imprisonment; for harm to a vulnerable species, $55,000 and/or one year imprisonment.
In many cases, however, it is the habitat rather than the individual animal itself which is harmed or damaged. It is therefore also an offence to damage the habitat of a threatened species, endangered population or endangered ecological community if the person knows that the land concerned is habitat of that kind (NPW Act, s 118D(1)): the maximum penalty is $110,000, and/or one year imprisonment.
It is also an offence to damage critical habitat: max penalty $220,000 or two years imprisonment, or both (NPW Act, s 118C(1)). If a map showing where the critical habitat is has been published in the Gazette, then the prosecution does not need to prove that the person knew it was declared critical habitat (they are assumed to have known) (NPW Act, s 118C(2)).
It is an offence to buy, sell or have in one's possession (eg in a vehicle, house, apartment or field) any animal that is listed as a threatened species or which is part of an endangered population: the maximum penalty for an endangered species is $220,000 and/or two years imprisonment; vulnerable species $55,000 and/or one year imprisonment, (NPW Act, s 118B(1)).
6.1.2 Threatened plants
It is an offence to pick any plant that is listed as a threatened species, or that is part of an endangered population or endangered ecological community (s 118A(2)): the maximum penalty for an endangered species, population or ecological community is $220,000 and/or two years imprisonment; for vulnerable species, $55,000 and/or one year imprisonment.
“Pick” includes gathering, cutting, poisoning, digging up or injuring the plant or any part of the plant (NPW Act, s 5). For example, slashing a paddock which contains threatened plants would constitute “picking”.
It is an offence to buy, sell or have in one's possession (eg in a vehicle, house, apartment or field) any plant that is listed as a threatened species: the maximum penalty for an endangered species is $220,000 and/or two years imprisonment; for vulnerable species $55,000 and/or one year imprisonment (NPW Act, s 118B(1)). This provision does not apply to an landowner or lessee if the plant is naturally occurring on their land (NPW Act, s 11B(3)).
Case study: Man fined $180,000 for clearing part of an endangered ecological community
Garrett v Williams (2006) 160 LGERA 115
The Southern Highlands Shale Woodland was listed as an endangered species under the Threatened Species Conservation Act 1995. It is an offence to pick plants that are part of an endangered ecological community (NPW Act, s 118A(2)). Mr Williams owned land in the Southern Highlands on which the listed Shale Woodland grew. Over two separate periods, he arranged for trees of the woodland to be cleared or cut down. The offences occurred while Mr Willliams' application for development consent to subdivide the land was being considered by the local council.
Mr Williams pleaded guilty to the charges. The Land and Environment Court found that the clearing was premeditated and deliberate, and that it was done to remove an impediment to the subdivision being approved. The Court fined Mr Williams a total of $180,000 and also ordered him to pay the prosecutor's costs.
6.2 Defences
Protection of threatened species under the TSC Act is not absolute. There are a broad range of defences that a person can call on if they are charged with an offence regarding threatened species. In short, if the offending activity was in some way authorised (eg by a licence or development consent), then an offence will not have been committed.
The specific defences which are available differ for each offence, and all of the defences are not covered in this Fact Sheet. However, some of the more typical defences are described below.
6.2.1 Licences to harm, kill, etc..
It is a defence to a prosecution for an offence (s 118A(3)) if the person had a licence to harm or pick the threatened species and they were complying with that licence.
6.2.2 Lawful development
It is a defence if the work which harmed the threatened species was essential for the carrying out of (NPW Act, s 118A(3)(b)):
development under a development consent
an activity by a determining authority under Part 5 of the EPA Act, or
a project approved under Part 3A of the EPA Act.
To have the benefit of this defence, the work must have been carried out in accordance with the relevant approval and its conditions. For example, if a person clears land in excess of that which is permitted under a development consent, then they cannot point to the development consent as a defence if they have cleared the habitat of a threatened species.
6.2.3 Routine agricultural and farming activities
It is a defence if the person can prove that they were carrying out work which was reasonably necessary for (NPW Act, s 118G(1), (3)):
Clearing native vegetation for a routine agricultural activity;
A routine farming activity (which does not include clearing native vegetation); or
An activity which is permitted under the Native Vegetation Act 2003, such as clearing non-protected regrowth, continuing an existing farming activity or engaging in sustainable grazing.
Routine agricultural activities include things such as (NPW Act, s 118G(2)):
constructing dams, fences, stockyards and farm roads
removing noxious weeds
controlling noxious animals
collecting firewood (but not for commercial purposes)
lopping native vegetation for stock fodder, and
traditional Aboriginal cultural activities (but not commercial activities) (NPW Act)
However, if the work, building or structure requires some form of approval (such as development consent), then the person must wait for the approval to be issued before carrying out the clearing (NPW Act, s 118G(3)(b)).
6.2.4 Property vegetation plans
It is a defence if the act complained of was authorised by a property vegetation plan approved under the Native Vegetation Act 2003 (but only if that plan had biodiversity certification) (NPW Act, s 118A(3)(a2), 118D(2)(a2)).
6.2.5 Property management plans
The Director-General of DECCW can approve a property management plan which has been prepared by a landholder (TSC Act, s 113B(1)). A property management plan can authorise the landowner, or others, to take certain actions (eg to authorise Aboriginal persons to harm animals or pick plants).
It is a defence to a threatened species offence if the person was carrying out the activity concerned in accordance with an approved property management plan (TSC Act, s 113B(6)).
6.2.6 Conservation agreements
Conservation agreements also provide an important defence to threatened species offences: it is a defence to a threatened species offence if the activity was carried out under a conservation agreement (TSC Act, s 118A(3)(b1), 118B(5)(a1), 118C(5)(d), 118D(2)(d)).
7 Enforcement
DECCW is responsible for enforcing the provisions of the TSC Act and NPW Act. The legislation can be enforced through criminal prosecutions, although DECCW will consider using its other enforcement powers before commencing a prosecution. These include the use of penalty notices, warning letters, stop work orders and interim protection orders.
If you think that someone has unlawfully interfered with a threatened species, population or ecological community, you should report it to DECCW on its Environment Line (toll free) 131 555 (24 hours).
7.1 Stop work orders
The Director-General can issue a stop work order under the TSC Act if the Director-General believes that an activity is being, or is about to be carried out, that is likely to (s 114):
Harm animals within a threatened species, population or ecological community;
Harm plants within a threatened species, population or ecological community;
Damage critical habitat; or
Damage the habitat of a threatened species.
Stop work orders cannot be issued for certain authorised or essential acts, such as acts authorised by a licence, development consent, property vegetation plan or fire fighting under the Rural Fires Act 1997 (s 114(3), (3A), (4)).
Stop work orders can be issued for up to 40 days (s 114(1)), but can be extended for further 40 day periods (s 117). The Director-General does not need to notify anybody before making a stop work order (s 115). If the Director-General is of the opinion that satisfactory arrangements cannot be made to modify the offending action (s 118), the Director-General must recommend that the Environment Minister make an interim protection order under Part 6A of the NPW Act (s 119).
A person against whom a stop work order is made can appeal against the order to the Environment Minister (s 116). There is no further (merits) appeal against a stop work order until the order is transmogrified into an interim protection order.
7.2 Interim protection orders
The Environment Minister can make an interim protection order over land containing threatened species, populations or ecological communities, or critical habitat, but only after receiving a recommendation to do so from the Director-General (NPW Act, s 91A(b), 91B). An interim protection order can prohibit someone from doing things, such as harming threatened species or their habitat.
The Minister does not need to give anyone notice before they can make an interim protection order (NPW Act, s 91C). An interim protection order has effect for up to 2 years, unless revoked beforehand (NPW Act, s 91D, 91E). The Director-General must keep a public register of all interim protection orders (NPW Act, s 91I).
An owner or occupier of land subject to an interim protection order can appeal against the order to the Land and Environment Court (Class 4) within 60 days of receiving the order (NPW Act, s 91H, Land and Environment Court Act 1979, s 20(1)(cf), and Land and Environment Court Rules 2007, Rule 6.1).
It is an offence not to comply with an interim protection order: the maximum penalty for a corporation is $1.1 million, or for an individual, $110,000 (NPW Act, s 91G).
7.3 Criminal prosecutions
7.3.1 Who can bring proceedings?
Only a person authorised by the Director-General of the Department of Environment, Climate Change and Water (in practice, this will usually be an officer within DECCW) or a police officer can bring a prosecution for a threatened species offence (NPW Act, s 179).
7.3.2 Sentencing options
The Land and Environment Court can impose significant fines and terms of imprisonment on offenders. In addition to this, the Land and Environment Court can order a person convicted of a threatened species offence to restore the critical habitat or habitat, to buy and retire a specified number of biodiversity credits, and to give security (eg a bank guarantee) to ensure the performance of any of their court-ordered obligations (NPW Act, s 118E).
7.4 Civil remedies
The Land and Environment Court can issue an injunction to stop an activity that is causing harm to a threatened species or its habitat. It can also make a declaration that an offence provision has been breached. Any person can bring proceedings to remedy or restrain a breach of the TSC Act (s 147).
Australian Science Media Centre – Hot Topics, ‘Rapid Roundup: 2008 IUCN Red List of Threatened Species – experts respond' available at http://www.aussmc.org/Red_list_round-up.php ; Nature Conservation Council NSW, ‘Australia's extinction emergency' available at http://nccnsw.org.au/index.php?option=com_content&task=view&id=2540&Itemid=811.
EPBC Act, s 26 – 27A.
EPBC Act, s 28.
EPBC Act, s 18 and 18A.
National Parks and Wildlife Act 1974, s 5 (Definitions)
NSW Department of Primary Industries, ‘Man fined for killing endangered grey nurse shark' (27 August 2008), available at www.dpi.nsw.gov.au/aboutus/news/recent-news/fishing -and-aquaculture/man-fined-for-killing-endangered-grey-nurse
