The Biodiversity Conservation Act 2016 (WA) is coming into force: what you need to know

Brad Wylynko, Cassie Musulin
25 Oct 2018
The new Act is meant to conserve and protect biodiversity and to promote the ecologically sustainable use of biodiversity components in the State, and will bring more activities within the scope of biodiversity laws.

Western Australia will achieve an environmental milestone when the Biodiversity Conservation Act 2016 (WA) and its Regulations replace the 1929 Sandalwood Act and the 1950 Wildlife Conservation Act, and establish a new regime for the conservation and protection of biodiversity on 1 January 2019.

Some of the key changes to be implemented by the Act include:

  • Listing changes: both species and ecological communities (ie. naturally occurring groups of plants, animals and other organisms interacting in a unique habitat such as Banksia Woodlands) may now be listed. The Minister may now also list habitats as "critical habitats";
  • Fines: the fines for taking threatened flora or taking, possessing or disturbing threatened fauna have significantly increased;
  • Obligation to report: there is an obligation to report an occurrence of threatened species or threatened ecological communities if found in the course of field work; and
  • Biodiversity Conservation Covenant or Agreement: landowners may now enter into a conservation covenant or a conservation agreement with the State.

Criteria for listing

The Act introduces criteria for range of different listings, and includes listing species as "endangered", "critically endangered" or "vulnerable", which brings WA in line with the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Scope of matters protected

For the first time in WA, the Act provides for not only listing species, but also threatened ecological communities, key threatening processes (such as land degradation), and critical habitats. The Act also establishes recovery plans and other modern features of biodiversity conservation and management.

Severity of fines

The Act imposes significant new fines. Penalties of up to $500,000 for individuals and $2.5 million for body corporates may be imposed for taking threatened flora, or taking, possessing or disturbing threatened fauna. These fines are a substantial increase from the previous $10,000 penalties under the Wildlife Conservation Act 1950 (WA).

Licensing scheme

The Regulations create a range of new licences to authorise the taking, disturbing, possessing, dealing, importing and exporting of flora and fauna.

Although licences granted under existing legislation, and in effect immediately before 1 January 2019, will continue as if they were granted under the new scheme, given the range of new licences, existing approvals may not be sufficient for your activities.

Furthermore, we note that a licence under the new scheme allows a licensee to deal with only the flora or fauna actually specified in the license (ie. it is not a general licence to deal with all protected flora and fauna). Given this, a pre-existing licence may not protect a licensee from future listings of flora and fauna. It is imperative that licensees continuously monitor future listings to minimise disruption to their operations.

Under the new scheme, a licence:

  • may only be granted to an individual (ie. a licence cannot be granted to a company);
  • has effect for a period of up to three years;
  • is not transferrable; and
  • may be consolidated if a person requires two or more licences.

The new scheme will involve an online licensing system, which will allow for applications, payments, amendments and licence returns to be made electronically.

Recommended steps to prepare for 1 January 2019

  • As the scope of activities affected by the new biodiversity regime will be far greater than under the Wildlife Conservation Act 1950 (WA), it is imperative to review your current operations with a view to minimising disruption once the new regime commences.
  • If you hold a licence under the Wildlife Conservation Act 1950 (WA), check Schedule 11 of the Regulations to see if your licence will be deemed a corresponding licence for the purposes of the Regulations.
  • If your company will need to hold a licence under the new scheme, ensure that your internal governance is reviewed in light of the fact that only individuals may be granted licences under the Regulations (however, we note that other "specified persons" or persons of a "specified class" can be authorised to carry out activities under the licence).
  • If you are conducting field work, you must report any threatened species or threatened ecological communities found during the work to avoid being subject to penalty.
  • And finally, monitor the Department of Biodiversity, Conservation and Attractions website for updates on the rollout of the new regime, including listing of various protected matters and licence application information.

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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.