Protecting NSW Biodiversity
The conservation of biodiversity, and in particular threatened species, is a key part of protecting our natural heritage and maintaining sustainable, productive landscapes. The importance of this issue at both state and national levels was highlighted by the introduction of legislation aimed at managing threatened species and ecological communities, such as Cumberland Plain Woodland, a critically endangered ecological community (Image: Cumberland Plain Woodland OEH).
Legislation
In NSW, the key piece of legislation relating to the protection and management of biodiversity and threatened species is the Threatened Species Conservation Act 1995 (TSC Act).
The purpose of the TSC Act is to:
Consultation and co-operation with landholders, conservation groups, agencies, local councils and the general community are essential to combating biodiversity loss. As such, provisions for consultation and co-operation are key elements of the TSC Act.
Commencement of the TSC Act
The TSC Act commenced operation on 1 January 1996. It repealed the Endangered Fauna (Interim Protection) Act 1991, which provided for the designation of some animals as endangered and the regulation of activities affecting these animals and their habitat.
How does the TSC Act protect threatened species?
The TSC Act, through Part 8A of the National Parks and Wildlife Act 1974 (NPW Act) prohibits the harming, picking, possessing, buying or selling of individual threatened species. The Act contains a prohibition against the damage of their habitat and contains provisions to protect endangered populations and threatened ecological communities.
Critical habitat protection
The TSC Act recognises that habitat loss, fragmentation and degradation are the most significant causes of species loss and that protecting the habitat of threatened species is fundamental to their conservation. The Act provides for the identification of habitat that is critical to the survival of an endangered species, population or ecological community.
See critical habitat protection for more information.
Impact assessment
If an environmental impact assessment is required for a proposed development or activity before development consent under the EP&A Act can be granted, it is likely the assessment will need to consider whether there is likely to be a significant effect on any threatened species, population or ecological community, or their habitat. If a significant impact is likely, a more detailed assessment in the form of a species impact statement (SIS) may be required.
Guidelines have been prepared to assist proponents in determining whether a proposed development or action is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats. These guidelines can be viewed at:
If a project is authorised under the EP&A Act, a separate licence under the TSC Act is not required.
Recovery and threat abatement
The TSC Act requires strategies for promoting the recovery of each threatened species, population and ecological community and for managing each key threatening process.
For more information on recovery and threat abatement visit:
Enforcement
Responsibility for the protection and management of threatened species, populations, ecological communities and their habitat lies with the Minister for the Environment and the Chief Executive of the NSW Office of Environment and Heritage (OEH).
The decision to prosecute alleged offenders is discretionary. Factors that influence the decision to prosecute include the value of the prosecution as a deterrent to other offenders, the availability of evidence and the level of impact on the species, population or ecological community. In making this decision OEH will consider alternatives to prosecutions such as penalty notices, stop work orders, interim protection orders, warning letters or any combination of these.
Who enforces compliance with threatened species legislation?
Threatened species legislation is enforced by OEH officers authorised by the Chief Executive, such as National Parks and Wildlife rangers. Police officers are also authorised to enforce threatened species legislation. Authorised officers have extensive legal powers to identify, locate, obtain, or secure evidence relating to suspected offences under the NPW Act. Authorised officers also have, and may exercise, the functions of an authorised officer under Part 7 of the Protection of the Environment Operations Act 1997 for some purposes.
Prosecution penalties
If a person is convicted of a threatened species offence under the NPW Act, they face criminal penalties of up to $220,000 or two years in prison, or both. In addition, if the case involves harming an animal or picking a plant that is, or is part of, an endangered species, population or ecological community, additional penalties of up to $11,000 apply to each animal or whole plant that was harmed or picked.
Exceptions and permitted activities
The Act provides for a number of exceptions and defences to prosecution. For example, developments that are undertaken in accordance with a development consent issued under the Environmental Planning and Assessment Act 1979 (EP&A Act) are exempt from the prohibitions. Routine agricultural management activities authorised under the Native Vegetation Act 2003 and some other activities may also be exempt. Part 8A of the NPW Act contains a list of defences.
Rehabilitation order
If a person is convicted of a threatened species offence the court may order a person to rehabilitate or mitigate the damage caused to habitat as a result of the offence. The court may also order the offender to provide security to ensure the rehabilitation or mitigation order is carried out.
Injunction
The court may order an injunction to stop an activity that is causing harm or imminent harm to a threatened species, population, ecological community or their habitat. The injunction remains in place until the matter is resolved. Any breach of the injunction can result in the offender being held in contempt of court.
Interim protection order
The Minister for the Environment may make an interim protection order for a period of up to two years over an area of land that has natural, scientific or cultural significance. The Minister may also make an interim protection order on land where the Chief Executive of OEH intends to exercise functions relating to threatened species or declared critical habitat.
Stop work order
The Chief Executive of OEH may make a stop work order for a period of 40 days if an action is being, or is about to be carried out that would harm a threatened species, population or ecological community or their habitat. These orders can be renewed for 40-day periods as required.
Penalty notice
A penalty infringement notice is a means of dealing with comparatively minor offences of the legislation or minor breaches of licences issued under the legislation. They are not issued for serious offences or offences which have caused significant harm. Penalty notices give an offender the option of paying a penalty and not having the matter heard in courts. Penalty notices of $500 for an individual and $1,000 for a corporation may be issued for offences relating to vulnerable species and $1,500 for an individual and $3,000 for a corporation for all other threatened species offences.
Warning letter
A warning letter provides written feedback to licence holders or others when licence breaches or minor offences have been identified by OEH. The letter is a warning that environmental performance and compliance must be improved. The letter is also evidence of the compliance history of the offender and can be used as a basis for a higher-level enforcement response should offences be identified in the future.
Reporting threatened species offences
If you believe you have any information of suspected offences being carried out in relation to a threatened species, populations and ecological communities or their habitat you can call the NSW State-wide ENVIRONMENT LINE on (toll free) 131 555 (24 hours).
Registers
OEH maintains public registers where information can be found about what areas have been declared as critical habitat, and details of processed and pending applications for section 91 licences issued under the TSC Act.
Other relevant legislation
Other legislation dealing with threatened species in NSW but not administered by OEH includes:
