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The information in this fact sheet is up-to-date as of January 2011.

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6.2 Protecting native animals and plants

6.2.1 Overview

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 Regulation 2009.

Once a particular plant or animal is listed as a threatened species (vulnerable, endangered, etc) then their protection is covered under the provisions of the Threatened Species Conservation 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 Commonwealth Threatened Species Law.

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.

6.2.1.1 Who is responsible for protecting native animals and plants in NSW?

The Director-General of the Department of Environment, Climate Change and Water (DECCW) is responsible for protecting native animals and plants in NSW.1 In practice, this work is carried out by DECCW.

Commonwealth laws also control the harm and use of native species. See Fact Sheet 6.4 on Commonwealth Threatened Species.

6.2.1.2 Useful web links

• Nature conservation page of the DECCW website (including native animals and plants)
• Nature Conservation Council (NSW)
• NSW Wildlife Council
• WIRES

6.2.1.3 Useful legal texts

• Environmental & Planning Law in New South Wales, by Lyster, Lipman, Franklin, Wiffen and Pearson, The Federation Press (2007), pp 373 - 378

6.2.2 Native animals

All native animals (native fauna) are protected under the National Parks and Wildlife Act. In NSW, DECCW is responsible for protecting native animals. Information about well-known and not so well-known native animals in NSW is contained in DECCW's Fact Sheets.

6.2.2.1 What species are protected?

6.2.2.1.1 Protected animals

All native animals such as mammals, birds, reptiles and amphibians are protected in NSW. There is therefore no list showing which native species are protected (but note that there are lists of which threatened species are protected. See Fact Sheet 6.1).

The National Parks and Wildlife Act provides for the protection of all animals (fauna) except those which are listed as “unprotected fauna."2 Unprotected fauna include: bears, lions, dogs, moles, hedgehogs, cloven hoofed animals, horses, donkeys, apes, monkeys, elephants, hares, rabbits and Indian Palm Squirrels.

6.2.2.1.2 Non-native (unprotected) animals

Non-native animals (called “unprotected fauna) 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.

6.2.2.2 How are native animals protected?

The National Parks and Wildlife Act contains a range of offences protecting native animals, and also a broad range of defences (lawful justifications).

6.2.2.2.1 Offences

It is an offence to harm protected fauna. This includes harm by using a substance (eg poison), an animal (eg a hunting dog), or a gun, net or trap.3 The maximum penalty is $11,000 or 6 months imprisonment, or both.

It is an offence to buy, sell or possess protected fauna, although there are some exceptions to this, such as having a licence to do so.4

6.2.2.2.2 Directions from NPWS officers

An NPWS officer may give a direction to someone to stop feeding protected fauna, or to stop any activity that is causing or might cause distress to native animals.5 An authorised officer may 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.6

6.2.2.2.3 Defences which permit harm to native animals

There is a broad range of defences that may be available to a person if they are charged with the offence of harming protected animals.7 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:8

• they had a licence (see below);
• the work causing the harm was authorised under the Environmental Planning and Assessment Act 1979 (eg done in accordance with a development consent under Part 4, 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;
• 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 management activity.

“Routine agricultural management activities” include things such as:10

• constructing, operating and maintaining rural infrastructure such as 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).

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.11

6.2.2.3 Rescuing injured native animals

Although it is an offence to possess protected fauna,12 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.13

For more information on sick, injured and orphaned native animals, see the DECCW website.

6.2.2.4 Licences

A wildlife licence is required from the NPWS to do any of the following things to protected fauna:

• harm, keep, exhibit or sell protected fauna;14
• keep native animals as pets;15
• collect native animals to sell;16
• carry out research on protected native animals;17
• move native animals from NSW across State or Territory borders;18 or
• liberate an animal within NSW.19

There is also a range of commercial operations which are not permitted without a licence.

These include:

• harming animals for sale;20
• being an animal dealer;21
• being a skin dealer;22
• being an emu breeder;23 or
• exhibiting protected animals.24

Licences are issued by the DECCW.

There is no public register of licences issued to harm native animals (although there is a public register for licences to harm threatened species)

6.2.2.4.1 Appeals

A person whose application for a licence is refused, or who is unhappy with any condition or restriction attached to the licence, may appeal to the Environment Minister.25 The decision of the Minister is final and binding,26 but may be challenged in the Land and Environment Court if there was a legal error in the way the decision was made.27

6.2.2.5 Marine mammals

Marine mammals are whales, dolphins and seals.

There are two different legislative regimes in place 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 National Parks and Wildlife Act 1974;
• Commonwealth waters (between 3 nautical miles and 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.

6.2.2.5.1 NSW laws protecting marine mammals

Marine mammals are protected under the general provisions of the National Parks and Wildlife Act 1974 and also receive additional protection under that Act.28 The main thrust of this protection is that marine mammals cannot be approached within certain distances.

6.2.2.5.2 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 Threatened Species Conservation Act 1995.

In NSW, the following marine mammals are listed as threatened:

• Endangered:29
• Dugong
• Blue Whale
• Vulnerable:30
• New Zealand Fur-seal
• Australian Fur-seal
• Sperm Whale
• Humpback Whale
• Southern Right Whale.

6.2.2.5.3 Approaching marine mammals

A person must not approach a marine mammal any closer than the prescribed distance or interfere with a marine mammal.31 “Interfere with” includes: harassing, chasing, herding, tagging, marking or branding. The maximum penalty is $110,000 or 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:32

• 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;33 or
• they were approached by the marine mammal itself.34

Vessels within the caution zone (for a dolphin: 150 metres, whale: 300 metres) must move away at a constant speed and in a manner that consistently minimises noise. They must also post a look out for whales and dolphins and must not get in their path.35 There must be no more than 2 vessels within a caution zone to prevent crowding of boats.36

Swimmers must not enter the water if there is a whale within 100 metres or a dolphin within 50 metres (no surfing with dolphins). They must also move slowly to avoid startling it and must not touch or move towards it.37 The maximum penalty is $5,500.

The Environment Minister may make orders for exceptions to these rules, eg for sick or injured animals, or calves separated from their mothers.38

6.2.2.5.4 Marine Mammals Advisory Committee

A Marine Mammals Advisory Committee39 has been set up to advise the Environment Minister on:

• the conservation and protection of marine mammals;
• plans for dealing with strandings of marine mammals;
• plans of management; and
• such matters relating to the administration of the National Parks and Wildlife Act in relation to marine mammals as are referred to it by the Environment Minister.

6.2.2.6 Plans of management

The Director-General of DECCW may prepare a plan of management setting out how populations of marine mammals should be managed. The plan may cover things such as identifying the threats to the survival of marine mammals; research and strategies relating to the conservation and protection of marine mammals, educational activities; and international agreements and agreements between the Commonwealth and the States relating to marine mammals.40 A plan of management must be publicly exhibited for comment, after which the Environment Minister may adopt or reject the plan.41

6.2.3 Native plants

Picking or dealing with native plants is prohibited without a licence.

6.2.3.1 Which native plants are protected?

6.2.3.1.1 Protected native plants

The native plants which are protected under the National Parks and Wildlife Act (“protected native plants”) are listed in Schedule 13 of the Act.

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, maidenhair ferns and waratahs. Other plants such as Bird's-nest Ferns, tree ferns, orchids and grass trees are also on the Schedule 13 list.

6.2.3.2 How are native plants protected?

6.2.3.2.1 Offences

It is an offence to pick or have in your possession a protected native plant.42 The maximum penalty is $11,000 (plus $1,100 for each additional plant), or 6 months imprisonment, or both.

It is an offence to sell protected native plants without a licence.43

6.2.3.2.2 Defences

There are many defences to a charge of picking or possessing a protected native plant.44

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;
• the person cultivated the plant themselves as a (non commercial) hobby; or
• the person got the plant from an authorised dealer.

6.2.3.2.3 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 of DECCW may prepare a flora plan of management to regulate and monitor those impacts.45

It is a condition of all licences issued authorising the picking of a protected native plant in the wild that the picking take place in accordance with any relevant flora plan of management.46

6.2.3.2.4 Forestry

The Forestry Commission must not issue a licence for the removal of native plants from State forests, timber reserves or Crown land unless the removal is permitted under a flora plan of management or the plant would have been damaged or destroyed in the taking of timber, products or forest materials under the Forestry Act 1916.47

6.2.3.5 Licences to pick, grow, etc native plants

The Director-General of DECCW may issue a licence authorising a person to:48

• pick the protected native plants named in the licence;
• grow protected native plants on private land for the purposes of sale;
• import or export native plants from NSW; or
• pick any protected native plant for scientific, educational or conservation purposes.

It is a condition of a licence to pick that the picking take place in accordance with any relevant flora plan of management.49

There is no public register of licences to pick native plants.

Licences are issued by DECCW.

6.2.3.5.1 Appeals

A person whose application for a licence is refused, or who is dissatisfied with any condition or restriction attached to the licence may appeal to the Environment Minister.50 The decision of the Minister is final and binding,51 but could be challenged in the Land and Environment Court if there was a legal error in the way the decision was made.52

6.2.4 Enforcement

DECCW is responsible for enforcing the provisions of the National Parks and Wildlife Act, including those provisions protecting native animals and plants. The legislation may be enforced through criminal prosecutions, although DECCW may consider using its other enforcement powers before commencing a prosecution. These include the issue 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).

6.2.4.1 Stop work orders

The Director-General of DECCW (through an authorised officer) may issue a stop work order if the Director-General is of the opinion that an activity is being, or is about to be, carried out that is likely to significantly affect a native animal (protected fauna) or native plants.53 A stop work order may not be issued if the activity is already authorised under another Act, such as by a development consent or licence.54

A stop work order lasts for 40 days and can be extended for a further period of 40 days.55 The Director-General does not need to notify anybody who might be affected by the order before issuing an order.56 The person against whom an order is made may appeal against the order to the Environment Minister.57 There is no further merits appeal to the Land and Environment Court, but the validity of the order may be challenged under judicial review.58

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.59

6.2.4.2 Interim protection orders

The Environment Minister may 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.60 An interim protection order may 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, an interim protection order may not be issued if the action in question is essential to carry out work under a development consent or for a Part 3A major project.61

The Minister does not need to give anyone who will be affected by the order notice of the intention to make an interim protection order.62 An interim protection order has effect for such period as specified in the order but not longer than 2 years, unless revoked beforehand.63 The Director-General must keep a public register of all interim protection orders.64

An owner or occupier of land subject to an interim protection order may appeal against the order to the Land and Environment Court within 60 days of receiving the order.65

It is an offence not to comply with an interim protection order. The maximum penalty for a corporation is $1.1 million, and for an individual it is $110,000.66

6.2.4.3 Civil enforcement

Any person may bring proceedings to remedy or restrain a breach of the National Parks and Wildlife Act.67

The Land and Environment Court may issue an injunction to stop an activity that is causing harm to a native animal or a protected native plant. It may also make a (civil) declaration that an offence provision has been breached.

6.2.4.4 Criminal prosecutions

DECCW may commence a criminal prosecution if it considers that there has been a breach of the National Parks and Wildlife Act. This may result in a fine, and potentially a term of imprisonment.

Only a person authorised by the Director-General of DECCW (in practice, this is an officer of DECCW) or a police officer may bring a prosecution for an offence against the National Parks and Wildlife Act.68

1. National Parks and Wildlife Act, ss. 92, 114)
2. Unprotected fauna are listed in Schedule 11 of the National Parks and Wildlife Act 1974.
3. National Parks and Wildlife Act 1974, s. 98(2).
4. National Parks and Wildlife Act 1974, s. 101.
5. National Parks and Wildlife Act 1974, s. 99A. The maximum penalty is $2,750.
6. National Parks and Wildlife Act 1974, s. 102.
7. National Parks and Wildlife Act 1974, ss. 98(3), 118G
8. National Parks and Wildlife Act 1974, ss. 98(3), 118G
9. National Parks and Wildlife Act 1974, s. 100(1)(b).
10. National Parks and Wildlife Act 1974, s. 118G(2).
11. National Parks and Wildlife Act 1974, s. 112.
12. National Parks and Wildlife Act 1974, s. 101.
13. National Parks and Wildlife Act 1974, s. 101(5)(c); National Parks and Wildlife Regulation 2009, cl. 57.
14. National Parks and Wildlife Act 1974, s. 120 - general licence.
15. National Parks and Wildlife Act 1974, s. 120 - general licence.
16. National Parks and Wildlife Act 1974, s. 123 - commercial fauna harvester's licence.
17. National Parks and Wildlife Act 1974, s. 132D - scientific licence.
18. National Parks and Wildlife Act 1974, s. 106) - import or an export licence. See also National Parks and Wildlife Act 1974, s. 126.
19. National Parks and Wildlife Act 1974 s. 127 - licence to liberate.
20. National Parks and Wildlife Act 1974, s. 103.
21. National Parks and Wildlife Act 1974 s. 124 – fauna dealer's licence.
22. National Parks and Wildlife Act 1974, s. 125 - skin dealer's licence.
23. National Parks and Wildlife Act 1974, s. 125A - emu licence.
24. National Parks and Wildlife Act 1974, s. 107.
25. National Parks and Wildlife Act 1974, s. 135.
26. National Parks and Wildlife Act 1974, s. 135(3).
27. National Parks and Wildlife Act 1974, s. 193. This is known as judicial review.
28. under Part 7A of the National Parks and Wildlife Act 1974, and Part 6 Division 3 of the National Parks and Wildlife Regulation 2009.
29. Threatened Species Conservation Act 1995, Schedule 1.
30. Threatened Species Conservation Act 1995, Schedule 2.
31. National Parks and Wildlife Act 1974, s. 112G(1).
32. National Parks and Wildlife Regulation 2009, cl. 61.
33. National Parks and Wildlife Act 1974, s. 112G(3).
34. National Parks and Wildlife Regulation 2009, cl. 60(1)(a).
35. National Parks and Wildlife Regulation 2009, cl. 62, 63.
36. National Parks and Wildlife Regulation 2009, cl. 63.
37. National Parks and Wildlife Regulation 2009, cl. 66.
38. National Parks and Wildlife Regulation 2009, cl. 67.
39. The Marine Mammals Advisory Committee was established under the National Parks and Wildlife Act 1974, s. 112A.
40. National Parks and Wildlife Act 1974, s. 112C.
41. National Parks and Wildlife Act 1974, s. 112D.
42. National Parks and Wildlife Act 1974, s. 117.
43. National Parks and Wildlife Act 1974, s. 118.
44. National Parks and Wildlife Act 1974, s. 117(3).
45. National Parks and Wildlife Act 1974, s. 115A.
46. National Parks and Wildlife Act 1974, s. 133(1A).
47. National Parks and Wildlife Act 1974, s. 116.
48. National Parks and Wildlife Act 1974, ss. 131, 132, 132A, 132C.
49. National Parks and Wildlife Act 1974, s. 133(1A).
50. National Parks and Wildlife Act 1974, s. 135.
51. National Parks and Wildlife Act 1974, s. 135(3).
52. National Parks and Wildlife Act 1974, s. 176A. This is known as judicial review.
53. National Parks and Wildlife Act 1974, s. 91AA.
54. National Parks and Wildlife Act 1974, ss. 91AA(3), (4).
55. National Parks and Wildlife Act 1974, s. 91DD.
56. National Parks and Wildlife Act 1974, s. 91BB.
57. National Parks and Wildlife Act 1974, s. 91CC.
58. National Parks and Wildlife Act 1974, s. 176A; Land and Environment Court Act1975, s. 20(1).
59. National Parks and Wildlife Act 1974, s. 91EE.
60. National Parks and Wildlife Act 1974, s. 91A.
61. National Parks and Wildlife Act 1974, s. 91AA(4)(a) – (d).
62. National Parks and Wildlife Act 1974, s. 91C).
63. National Parks and Wildlife Act 1974, ss. 91D, 91E.
64. National Parks and Wildlife Act 1974, s. 91I.
65. National Parks and Wildlife Act 1974, s. 91H; Land and Environment Court Act 1979, s. 20(1)(cf); Land and Environment Court Rules 2007, Rule 7.1.
66. National Parks and Wildlife Act 1974, s. 91G.
67. National Parks and Wildlife Act 1974, s. 193.
68. National Parks and Wildlife Act 1974, s. 191.