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Last updated: 26 November 2008
6.2 Protecting native animals and plants
1 Overview
Key to terms used in this Fact Sheet
Act means the National Parks and Wildlife Act 1974
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 Water1
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environment Minister means the NSW Minister for Climate Change and the Environment
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.
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 National Parks and Wildlife Act 1974.
All native animals (fauna: mammals, birds, reptiles and amphibians) and many species of native plants (flora) are protected in NSW under the National Parks and Wildlife Act 1979 and the National Parks and Wildlife Regulations 2002.
Once a particular plant or animal is listed as a threatened species (vulnerable, endangered, etc) then their protection shifts across to the Threatened Species Act 1995. This Fact Sheet explains how native fauna and flora which are not threatened are protected under NSW law.
For information on how threatened species are protected in NSW, see Fact Sheet 5.1 Threatened Species.
For information on how threatened species are protected nationally, see Fact Sheet 3.3
If you are interested in how you can protect native animals and plants on your own land, such as under a conservation agreement or in a wildlife refuge, see Fact Sheet 6.4 on Conservation on private land.
Who is responsible for protecting native animals and plants in NSW?
The Director-General of DECCW is responsible for protecting native animals and plants in NSW (NPW Act, s 92, 114). In practice, this work is carried out the National Parks and Wildlife Service.
Note: the new Biobanking Scheme introduced in Part 7A of the Threatened Species Conservation Act 1995 which allows biodiversity credits to be created and traded does not apply to native flora and fauna as it can only be used to protect threatened species.
2.1.1 Protected animals
All native animals such as mammals, birds, reptiles and amphibians are protected in NSW. There is no list showing which species which are protected (but note that there are lists of which threatened species are protected: see Fact Sheet 6.1).
Rather, the NPW Act states that all animals (fauna) are protected except for those which are listed as "Unprotected fauna" (NPW Act, s 5 definition "protected fauna"). These are listed in Schedule 11 of the Act: (NPW Act, 93). Unprotected fauna are: bears, lions, dogs, moles, hedgehogs, cloven hoofed animals, horses, donkeys, apes, monkeys, elephants, hares, rabbits and Indian Palm Squirrels.
2.1.2 Non-native (unprotected) animals
Non-native animals (called "unprotected fauna" under the NPW Act), might have legal protection under other legislation, such as the:
Prevention of Cruelty to Animals Act 1979
Companion Animals Act 1998
Non-Indigenous Animals Act 1987
Exhibited Animals Protection Act 1986
Deer Act 2006
Game and Feral Animal Control Act 2002.
2.2 How are native animals protected?
The NPW Act contains a range of offences protecting native animals, and also a broad range of defences (lawful justifications): see below.
2.2.1 Offences
It is an offence to harm protected fauna (animals). This includes harm by using a substance (eg poison), an animal (eg a hunting dog), or a gun, net or trap (NPW Act, s 98(2): max penalty $11,000, or 6 months imprisonment, or both.
It is an offence to buy, sell or possess protected fauna (animals), although there are some exceptions to this, such as having a licence to do so (NPW Act, s 101).
A person who is rescuing an injured animal will not commit an offence so long as they notify the Director-General in writing within 7 days that they have the animal (NPW Act, s 101(5)(c), NPW Regs, cl 58). They are not allowed to keep the animal as a pet: see the text box below for further information].
An NPWS officer can also give a direction to someone to stop feeding native animals, or to stop any activity that is causing or might cause distress to native animals (NPW Act, s 99A): max penalty $2,750. Directions last for up to 24 hours, but cannot be given if the activity is already licenced or approved (NPW Act, s 99A(4), (6)). An authorised officer can also give a direction to someone who is lawfully keeping a native animal in confinement (eg a cage) in relation to food, drink and shelter (NPW Act, s 102).
2.2.3 Defences which permit harm to native animals
There are a broad range of defences that a person can point to if they are charged with the offence of harming protected animals (NPW Act, s 98(3), 118G). In short, if the offending activity was in some way authorised (eg by a licence or development consent), then the person will not have committed an offence.
For example, a person will not have committed an offence if:
They had a licence (see below)
The work causing the harm was done in accordance with a development consent, a Part 5 approval or a Part 3A approval
They had a conservation agreement or joint management agreement
They were returning the animal after escape (s 100(1)(b))
They were carrying out a routine farming activity
They were carrying out an activity permitted under the Native Vegetation Act 2003, such as clearing non-protected regrowth, continuing an existing farming activity or engaging in sustainable grazing, or
They were carrying out a routine agricultural activity.
"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.
Harming or killing a snake is permitted unless the person had no reason to harm or kill it, ie the snake was not causing a danger to person or property (s 112).
2.3 Rescuing injured native animals
Although it is an offence to possess native animals (NPW Act, s 101), a person who is rescuing an injured animal will not commit this offence so long as they notify the Director-General in writing within 7 days that they have the animal (NPW Act, s 101(5)(c), NPW Regs, cl 58): see related text box.
Rescuing injured native animals: what should I do?
If you are rescuing a native animal and require assistance, contact WIRES on 1300 094 737
Click here to visit the WIRES website on animal first aid
There is no public register of licences to harm native animals (although there is a public register for licences to harm threatened species under s 91 of the TSC Act).
2.4.1 Appeals
A person whose application for a licence is refused, or who is unhappy with any condition or restriction attached to the licence can appeal to the Environment Minister (s 135). The decision of the Minister is final and binding (s 135(3)), but could be challenged in the Land and Environment Court if there was a legal error in the way the decision was made (judicial review) (s 176A).
2.5 Marine mammals
Marine mammals are whales, dolphins and seals.
There are two different legislative regimes in for marine mammals, depending on where they are found:
NSW coastal waters (within 3 nautical miles of the coast): marine mammals are protected under NSW law, namely the NPW Act.
Commonwealth waters (from 3 nautical miles, and up to 200 nautical miles): Marine mammals (whales, dolphins and porpoises, but not seals) are protected under Commonwealth law, namely the EPBC Act.
For information on how marine mammals are protected in Commonwealth waters, see Fact Sheet 3.3 Commonwealth threatened species law.
2.5.1 NSW laws protecting marine mammals
In addition to the standard protection for protected fauna under the NPW Act (see above), marine mammals have additional protection under Part 7A of the NPW Act, and Division 3A of the National Parks and Wildlife Regulation 2002. The main thrust of this protection is that marine mammals cannot be approached within certain distances: see below for details.
2.5.2 Marine mammals that are also threatened species
If the species of marine mammal is also listed as threatened, then it will also be protected under the TSC Act.
In NSW, the following marine mammals are listed as threatened:
Endangered (Sch 1):
Dugong
Blue Whale
Vulnerable (Sch 2):
New Zealand Fur-seal
Australian Fur-seal
Sperm Whale
Humpback Whale
Southern Right Whale.
2.5.3 Approaching marine mammals
A person must not approach a marine mammal any closer than the prescribed distance or interfere with a marine mammal (NPW Act, s 112G(1)). "Interfere with" includes harassing, chasing, herding or tagging: max penalty $110,000, two years imprisonment, or both. If the approach or interference was made or caused by a commercial operator, then the maximum penalty increases to $220,000.
The prescribed distances are:
Motorized water craft (including jet skis): 300 metres
Non-motorised vessels (eg yachts):
approaching whales: 100 metres
approaching dolphins: 50 metres
Swimmers approaching whales and dolphins: 30 metres
Fixed-wing aircraft: 300 metres (above)
Helicopters and gyrocopters: 500 metres (above)
For seals and sea lions, the prescribed distances are:
Person in vessel, seal in the water: 10 metres
Person swimming or pedestrian, seal in the water: 10 metres
A seal hauled out on land: 40 metres
A seal or sea lion pup: 80 metres.
A person will not commit an offence if:
They had a licence to take the action (NPW Act, s 112G(3))
They were approached by the marine mammal itself (NPW Reg, cl 57A(1)(a)).
Vessels within the caution zone (for a dolphin: 150 metres, whale: 300 metres) must move away at a constant speed, must post a look out for whales and dolphins and must not get in their path (Reg, cl 57C, 57D). There must be no more than 2 vessels within a caution zone (no crowding of boats) (Reg, 57D(4)).
Swimmers must not enter the water if there is a whale within 100 metres or a dolphin within 50 metres (no surfing with dolphins), and must not touch the animals or move towards them (Reg cl 57G): Max penalty $5,500.
The Environment Minister can make orders for exceptions to these rules, eg for sick or injured animals, or calves separated from their mothers (Reg, cl 57H).
Note: the National Parks and Wildlife Regulation 2002 (Div 3A, cll 57 - 57H) contains detailed provisions concerning the offence of approaching marine mammals. The Regulation should be consulted for further detail.
2.5.4 Marine Mammals Advisory Committee
A Marine Mammals Advisory Committee is established under the NPW Act (s 112A). The functions of the Committee (s 112B) are to advise the Environment Minister on:
how to protect marine mammals
plans for dealing with strandings of marine mammals
plans of management, and
any matter referred by the Minister to it.
2.6 Plans of management
The Director-General can prepare a plan of management to set out how populations of marine mammals should be protected. The plan can cover things such as identifying the threats to their survival, what research should be allowed, and which educational activities should be permitted (NPW Act, s 112C). Plans must be publicly exhibited for comment, after which the Environment Minister can adopt or reject the plan (NPW Act, s 112D).
3 Native plants
Native plants are protected under Part 8 of the NPW Act. In short, picking or dealing with native plants is prohibited without a licence.
3.1 Which native plants are protected?
3.1.1 Protected native plants
The native plants which are protected under the NPW Act ("protected native plants") are listed in Schedule 13 of the Act (NPW Act, s 115).
The list includes over 100 native plant species, many of which are commonly used in the cut-flower industry for ornamental purposes, such as Sturt's Desert Pea, Christmas Bells, maiden hair ferns and the waratah. Other plants such as Bird's-nest Ferns, tree ferns, orchids and grass trees are also on the Schedule 13 list.
It is an offence to pick or have in a person's possession a protected native plant (s 117): max penalty $11,000 (plus $1,100 each additional plant), or 6 months imprisonment, or both.
It is an offence to sell protected native plants without a licence (s 118).
3.2.2 Defences
There are many defences to a charge of picking or possessing a protected native plant (s 117(3)).
Some of the defences are:
That the protected plant was grown upon private land and was picked by or with the consent of the owner, lessee or occupier of that land
The picking was authorised by a conservation agreement
The person had a licence to take the plant (see below)
The person cultivated the plant themselves as a (non commercial) hobby
The person got the plant from an authorised dealer.
3.2.3 Flora plans of management
If a particular species of native plant might be threatened by some sort of commercial activity (eg popularity with the cut flower industry), the Director-General can prepare management plan for it to regulate and monitor those impacts (s 115A).
It is a condition of all licences to pick under s 131 that the picking take place in accordance with any relevant flora plan of management (s 133(1A)).
3.2.4 Forestry
The Forestry Commission cannot allow native plants to be taken from State forests or Crown land unless the removal is permitted under a flora plan or management or the plant would have been damaged anyway in the course of logging (s 116).
3.3 Licences to pick, grow, etc native plants
NPWS Director-General can issue a licence authorizing a person to:
pick the protected native plants named in the licence (s 131)
grow protected native plants on their property (s 1332)
import or export native plants from NSW (s 132A)
pick any protected native plant for scientific, educational or conservation purposes (s 132C).
It is a condition of a licence to pick under s 131 that the picking take place in accordance with any relevant flora plan of management (s 133(1A).
There is no public register of licences to pick native plants.
A person whose application for a licence is refused, or who is unhappy with any condition or restriction attached to the licence can appeal to the Environment Minister (s 135). The decision of the Minister is final and binding (s 135(3)), but could be challenged in the Land and Environment Court if there was a legal error in the way the decision was made (judicial review) (s 176A).
4 Enforcement
DECCW is responsible for enforcing the provisions of the NPW Act, including those provisions protecting native animals and plants. 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 harmed or dealt with a native animal or a protected native plant, you should report it to DECCW on its Environment Line (toll free) 131 555 (24 hours).
4.1 Stop work orders
The Director-General (through an authorised officer) can issue a stop work order if the Director-General thinks that an activity is, or is about to be, carried out that is likely to significantly affect a native animal (protected fauna) or native plants (s 91AA). A stop work order cannot be issued if the activity is already authorised under another Act, such as by a development consent or licence (s 91AA(3), (4)).
A stop work order lasts for 40 days, but can be extended (s 91DD). The Director-General does not need to notify anybody before they can issue an order (s 91BB). The person against whom an order is made can appeal against the order to the Minister (s 91CC). There is no further merits appeal to the Land and Environment Court, but the validity of the order could be challenged under judicial review (Class 4) (s 176A, LEC Act, s 20(1)(cg).
After making a stop work order, the Director-General must immediately consult with the person proposing to take the action to determine whether the activity can be modified. If satisfactory arrangements cannot be made to protect the environment, the Director-General must recommend that the Environment Minister make an interim protection order (s 91EE).
4.2 Interim protection orders
The Environment Minister can make an interim protection order over land containing native animals and native plants, but only after receiving a recommendation to do so from the Director-General (NPW Act, s 91A). An interim protection order can prohibit someone from doing things, such as damaging the habitat of a native animal or picking a native plant.
However, 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 work under a development consent or for a Part 3A major infrastructure project (NPW Act, s 91AA(4)(a) - (d)).
The Minister does not need to given anyone notice before they can make an interim protection order (s 91C). An interim protection order has effect for up to 2 years, unless revoked beforehand (s 91D, 91E). The Director-General must keep a public register of all interim protection orders (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 (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: max penalty corporation $1.1 million, and individual: $110,000 (s 91G).
4.3 Civil enforcement
The Land and Environment Court (Class 4) can issue an injunction to stop an activity that is causing harm to a native animal or a protected native plant. It can also make a (civil) declaration that an offence provision has been breached.
Any person can bring proceedings to remedy or restrain a breach of the NPW Act (s 176A).
4.4 Criminal prosecutions
DECCW can commence a criminal prosecution if it considers that there has been a breach of the NPW Act. This could result in a fine, and potentially a term of imprisonment.
Only a person authorised by the Director-General of the DECCW (in practice, this is someone within DECCW) or a police officer can bring a prosecution for an offence against a native animal or protected native plant (NPW Act, s 179).
National Parks and Wildlife Act 1974, s 5 (Definitions)
