A new report has slammed national and state habitat protection laws as “ineffective and woefully underused”.

In the aftermath of the devastating 2019-2020 fires, the Environmental Defenders Office (EDO) and the World Wide Fund for Nature-Australia (WWF-Australia) launched an ambitious project to help nature recover.

Called Defending the Unburnt, it set out to protect six east coast areas that included intact habitat that provided vital refuges for threatened plants, animals, and ecological communities in the aftermath of the worst fires the country had ever experienced.

“We thought using existing legal mechanisms would be the most efficient way to achieve this goal,” said WWF-Australia’s Head of Evaluation and Science, Romola Stewart.

“How wrong we were. What we encountered were barriers and bureaucracy.  The laws are ineffective or woefully underused.  At times trying to use existing legal provisions was like banging our heads against a brick wall.”

The Bushfires, Bureaucracy and Barriers report being launched today by WWF-Australia and EDO found:

  • identification of critical habitat is not mandatory;
  • critical habitat is not clearly defined;
  • procedural requirements and processes create barriers;
  • protections for critical habitat are limited;
  • critical habitat provisions are underused across Australian jurisdictions; and
  • the failure to provide incentives for protection of critical habitat on private land has contributed to underuse of the mechanisms.


Commonwealth: In the past20 years, no new areas have been added to the register  of critical habitatunder the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act), even though the Commonwealth has received data that would warrant listings for habitat of more than 60 species.

Queensland: Queensland’s Nature Conservation Act 1992includes a mechanism to identify and protect critical habitat and areas of major interest, but it appears these provisions have never been used in the 32 years since the Act came into force, and based on discussions with government officials, there are no plans to do so.

Victoria: In 2020, the Victorian Flora and Fauna Guarantee Act 1988 had been in force for 32 years, yet it had only been used twice to protect critical habitat, and those protections have subsequently been withdrawn. Despite recent amendments to the Act, no other critical habitat determinations have been made.

New South Wales: The NSW Biodiversity Conservation Act 2016 has provisions to protect areas of outstanding biodiversity value (AOBVs), but no new AOBVs have been declared since the Act commenced (protections for 5 areas of critical habitat have been carried across from previous legislation). While anyone can nominate an area of AOBV, landholder support is a requirement, which is a major obstacle. The NSW Environment Department, through its Saving Our Species (SoS) program, has relationships with  landowners who may have areas suitable for critical habitat declaration, but when EDO and WWF investigated using AOBVs, the department put the onus of negotiating with landholders onto the EDO and WWF-Australia. In any event, the Saving our Species (SoS) program does not provide permanent protection.

EDO Special Counsel Cerin Loane said: “We are failing some of our most at risk species.

“Habitat critical for the survival and recovery of threatened species is not being properly identified, protected, or managed.

“Australia has already lost 104 species to extinction and just over 2000 more are listed as threatened with extinction under the EPBC Act.”

“Australia remains a global leader in biodiversity loss.  Improvements to national environment laws could turn this around – but we are still waiting to see where they  land. 


WWF-Australia | Mark Symons | 0400 985 571

EDO | James Tremain | 0419 272 254


Bushfires, Bureaucracy and Barriers: How poorly implemented critical habitat frameworks risk failing the survival and recovery of threatened species and ecological communities March 2024