The information contained in this fact sheet is current as at 1 January 2005.
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:
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 Conservation (DEC) has a lead role in the protection of protected species.
These laws:
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:
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.
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.
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.
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.
Under the National Parks and Wildlife Act, it is an offence:
Only a person authorised by the Director-General of the Department of Environment and Conservation 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 Department of Environment and Conservation.
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:
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.
The Director-General of the Department of Environment and Conservation 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:
This type of stop work order is valid for forty days and may be extended at the discretion of the Director-General.
The Director-General of the Department of Environment and Conservation may recommend to the Minister for the Environment that an interim protection order be made in respect of land:
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.
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:
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.
The Department of Environment and Conservation 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.
The Threatened Species Conservation Act 1995 allows for key threatening processes to be identified. These currently include:
The Department of Environment and Conservation 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.
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 Department of Environment and Conservation, 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.
In New South Wales, marine species are dealt with outside the general threatened species laws.
The Fisheries Management Act 1994 provides for the listing of threatened marine species, populations and ecological communities. Many conservationists argue that this is undesirable, given that the Fisheries Management Act 1994 is more concerned with resource management than species protection.
The Fisheries Scientific Committee is responsible for determining whether or not a new species should be added to the list. The Minister then either accepts the recommendation or refers it back to the Committee for reasons of a scientific nature for further consideration.
The Committee can then either proceed with the recommendation, alter it or not proceed at all. The Minister is then bound to accept the Committee’s final determination. Any person can nominate a new species for listing to the Committee.
Species are listed as either endangered, critically endangered or vulnerable depending upon their status. Endangered, critically endangered and vulnerable species are referred to collectively as threatened species.
For more information, visit the Department of Primary Industries website at www.dpi.nsw.gov.au.
The Fisheries Management Act establishes a number of offences, including:
The Fisheries Management Act works in the same way with the Environmental Planning and Assessment Act as the Threatened Species Conservation Act does. Either the relevant EPI is biodiversity certified in which case the development is taken not to have a significant impact on threatened species and assessment takes place under the relevant EPI or a species impact statement has to be undertaken under the Environmental Planning and Assessment Act if the development is likely to have a significant impact on marine threatened species or marine critical habitat. IN this case, the consent authority cannot, as a general rule, grant consent without first getting agreement from the Director-General of the Department of Primary Industries.
The Fisheries Management Act allows the Minister for Primary Industries to determine plans for the protection of fish habitat. Any public authority, including local councils, must have regard to a habitat protection plan when exercising any relevant functions, such as considering development applications.
The key federal legislation in relation to protected species is the Environment Protection and Biodiversity Conservation Act, which protects species and ecological communities by:
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.
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:
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 list of threatened species and ecological communities is available on the Department of Environment and Heritage website at: www.deh.gov.au/biodiversity/threatened.
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 and Heritage website at: www.deh.gov.au/biodiversity/migratory/list.html.
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 and Heritage website at: www.deh.gov.au/epbc/biodiversityconservation/listedmarine.html.
The Environment Protection and Biodiversity Conservation Act also provides specific protection for whales, dolphins and porpoises.
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:
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 and Heritage.
Threatened species nomination forms and guidelines are available from the Department of Environment and Heritage website at: www.deh.gov.au/epbc.
Each State and Territory has its own threatened species lists under their own laws. A listing under State or Territory law does not necessarily mean that the species will be listed under the Environment Protection and Biodiversity Conservation Act.
The Act lists species which are threatened at a national level. It may not list a species that is endangered in one State but common in another. If a species is listed under State or Territory legislation, there will be specific listing and permitting processes for that jurisdiction.
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:
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.
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:
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.
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.
In 2004, the Environmental Defender’s Office (EDO) commenced legal action on behalf of Humane Society International (HIS) to restrain whaling by a Japanese whaling company in Antarctic waters within the Australian Whaling Sanctuary.
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.
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 and Heritage 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.
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:
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:
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:
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:
It is not an offence for an individual to breach a recovery or threat abatement plan. The plans simply guide Government action.
In particular:
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 and Heritage and have regard to economic and social considerations in making a decision whether to make a conservation order.
The Commonwealth Department of Environment and Heritage 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:
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:
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.