Significant increase in penalties for threatened species offences on the cards for Tasmania

By Nick Thomas, Nicole Besgrove

10 May 2018

In a move which highlights the current focus on enforcement of biodiversity protection laws, the Tasmanian Government is proposing significantly increased fines and possible prison terms for threatened species offences, bringing it more into line with laws in other Australian States.

On 3 May 2018, the Tasmanian Government introduced into Parliament a Bill to increase significantly the penalties for harming or interfering with threatened species.

This reflects an increasing focus on the enforcement of biodiversity protection laws, and raises the risk profile for activities which could harm threatened species.

As a result, developers and others whose activities could affect threatened species should take extra care when considering the potential impacts of their activities.

Threatened species offences

On National Threatened Species Day last year, the Tasmanian Government announced its intention to amend the Threatened Species Protection Act 1995 (TSP Act) to increase the penalties for those who deliberately kill threatened species in Tasmania, in response to the shooting of two threatened eagles earlier that year.  The proposed amendments, in the Threatened Species Protection Amendment Bill 2018, come about eight months after that announcement.

Under the TSP Act, it is an offence for  a person to knowingly do, without a permit, any of the following things with respect to a member of a species that is listed under the TSP Act as being endangered, vulnerable or rare:

  • take (which includes kill, injure, catch, damage, destroy and collect), keep (which means to have charge or possession of), trade in or process; or
  • disturb where found on land subject to an interim protection order; or
  • disturb contrary to a land management agreement; or
  • disturb where subject to a conservation covenant entered into the Nature Conservation Act 2002; or
  • abandon or release into the wild.

These offences are strict liability, which essentially means that the prosecutor does not need to demonstrate intent or recklessness in order to prove the offence.  An offence could occur without the accused knowing.

Currently, the maximum penalty for committing such an offence is a fine of $15,900 (100 penalty units of $159 each) with a daily penalty not exceeding $3,1820 (20 penalty units) applying for each day during which the offence continues.

The Bill proposes to amend the TSP Act to:

  • increase the maximum penalty to $100,011 (629 penalty units);
  • increase the maximum daily penalty for each day during which the offence continues to $20,034 (126 penalty units); and
  • introduce a maximum 12 month custodial sentence, which could be imposed in addition, or as an alternative to, the monetary penalties.

These proposed changes will make Tasmania's maximum penalties for harming threatened species more comparable with the maximum penalties already being imposed in other jurisdictions such as Queensland, New South Wales and Victoria, where substantial fines or imprisonment for two years, or both, can be imposed, and in the Northern Territory, where imprisonment for a maximum of 10 years can be imposed as an alternative to the monetary fine.

What this means for you

Given the strict liability nature of the prohibitions in the TSP Act, and the scale of the increase in potential penalties, the stakes for contravening the threatened species protection requirements in the TSP Act would become much higher if the Bill is passed.

This will provide a significant added incentive to ensure compliance with the TSP Act.

It would be a good time for developers and others whose activities could affect threatened species to review their risk profile, compliance systems and management measures, to ensure they have adequate safeguards in place for their current or proposed activities.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.