Queensland's streamlined approach to nature conservation

By Ian Motti and Gabrielle Minards
18 Aug 2020
New and amended regulations under the Nature Conservation Act 1992 will commence on 22 August 2020 that create standalone regulations for both protected plants and protected animals with a substantially changed licensing framework for protected wildlife.

Following a review of the regulatory framework for the management of protected wildlife (animals) under the Nature Conservation Act 1992 (NC Act) and triggered by the prescribed expiry of existing regulations, the Queensland Government has released the following:

  • new Nature Conservation (Animals) Regulation 2020 (Animals Regulation) that will repeal the Nature Conservation (Administration) Regulation 2017, Nature Conservation (Wildlife Management) Regulation 2006 (Wildlife Management Regulation) and Nature Conservation (Wildlife) Regulation 2006 (Wildlife Regulation);
  • new Nature Conservation (Plants) Regulation 2020 (Plants Regulation) resulting from therepeal of the regulations above; and
  • an amended Nature Conservation (Protected Areas Management) Regulation 2017 (PAM Regulation).

These Regulations will commence on 22 August 2020.

Animals Regulation

The Nature Conservation (Animals) Regulation 2020 (Animals Regulation) introduces a new wildlife licensing framework but incorporates and streamlines existing provisions from the regulations that it replaces.

Two new classes of species are introduced by the Animals Regulation, being extinct and critically endangered. The Regulation also provides a separate management approach for each species classification, similar to the existing Wildlife Regulation.

General authorisations that remove the need to hold a licence or permit have been retained, including for local government and rail officers or contractors. The authorisation for government officers to take dead animals or animal parts has been expanded to where necessary or desirable to do so, for example for research purposes. Authorisations for emergency services officers and members of the Australian Defence Force have been included. There is also a general authorisation for individuals to collect naturally discarded part of a protected animal for private use.

Airports will now be authorised to take, remove or relocate a protected animal to prevent damage at an airport or a threat to a person's health or wellbeing. The airport will be required to make reasonable attempts to prevent or minimise the threat at first instance. The taking of the animal must not adversely affect the survival of the animal in the wild and must be humane.

In general, an animal authority under the Animals Regulation must not be granted where activities are likely to adversely affect conservation or ecological sustainability of native wildlife. The demerit points system for offences against the Act has been retained. There is now one overarching offence provision for breaching the conditions of an authority, with a higher offence for failure to comply with a record-keeping or return of operations condition.

Wildlife Licensing Framework

The new licensing framework ensures that a person can only keep a live protected or international animal if the animal is exempt, they have a general authorisation, or they hold a license. The taking of scorpions, tarantulas and amphibians now requires authorisation under this Regulation.

There are three main categories of licence being standard, specialised and advanced licenses depending on the number and type of animals kept. Breeding is not allowed under the standard license and the administering authority must be notified if accidental breeding occurs. Licenses will be shifted to online record keeping, rather than hard copies.

The transitional provisions provide that any wildlife authority is taken to be the corresponding animal authority under the Regulation, but no wider authorisation is granted by this transition. Transitioned authorities cannot be renewed under the new regulation, meaning a new application will need to be made. Transitioned authorities must also keep additional records of movements if they do not keep online records. Existing applications for authorities will be taken to be applications under the new Animals Regulation. 

Plants Regulation

The new Plants Regulation retains and streamlines many of the existing provisions in the Administration, Wildlife and Wildlife Management Regulations. The Plants Regulation introduces two new classes of species (extinct and critically endangered), and similar to the Wildlife Regulation, provides a separate management approach for each classification. Notably, critically endangered species are a Matter of State Environmental Significance under the Environmental Offsets Act 2014 (the same applies for animals).

The allowances for taking protected plants, including under a conservation plan, an authority (such as a clearing permit) or an exemption are retained in the Plants Regulation and there are no significant amendments to these provisions.

Almost all the existing exemptions for taking or using protected plants are retained, including allowing clearing of protected plants where the area is not high risk, or where the area is high risk but a flora survey report has identified that threatened or near threatened plants will not be impacted. The provisions relating to the flora survey trigger map and guidelines are also continued.

Some redundant exemptions have been removed, including the exemption for the chief executive to take and use protected plants, which is already governed by section 173P of the Nature Conservation Act 1992.

Parts of the Wildlife Management regulation are transferred to a new "plants exemption code" which is still to be released. This includes general administrative provisions on labelling, tagging and record keeping.

Clearing permits continue to be granted for two years. An overarching offence for breaching conditions of a plant authority without reasonable excuse now exists.

The transitional provisions that allow protected plants to be cleared under authorities granted before 31 March 2014 under another Act by the Governor in Council, or under a mining or petroleum lease, are retained. Otherwise, on commencement the Plants Regulation will apply to all existing authorities and agreements, existing applications, surveys, applications for review and commercial activity agreements in process.

Amendments to the PAM Regulation

Given the inclusion of specific administrative provisions in the Animals Regulation and the Plants Regulation, a common administrative regulation is no longer required. However, a number of administrative provisions applying to the management of protected areas and protected wildlife will be included in the PAM Regulation along with consequential amendments.

Provisions and amendments in the PAM Regulation cover the application process, transfer, renewal and cancellation provisions for protected area authorities and commercial activity agreements. The power to seize items and the provisions for fees is also relocated to the PAM Regulation. Aside from their relocation, there are no significant amendments to these provisions.

From commencement, the PAM Regulation will apply to all existing authorities and agreements, and existing applications, applications for review and commercial activity agreements in process as though they were made under the amended regulation.

Administrative Review amendments

New administrative review provisions have been included in the Animals, Plants and PAM Regulations Plants Regulation which amend the existing review provisions and definitions.

These provisions provide that an "affected person" may apply for review of an original decision (for example under the Animals Regulation or the Plants Regulation) and this includes any person whose interests are otherwise affected by the decision. An internal review application must only be dealt with by a person who is more senior than the original decision maker. Additionally, if a stay application is made to QCAT, QCAT must consider whether the stay is desirable given the interests of any person who may be affected, the public interest and any submission made to QCAT by the original decision-maker.

Next steps

Existing permit and authority holders should review the new Animals and Plants Regulations to determine what authority they will be deemed to hold on 22 August 2020. Holders should also review the classes of species relevant to their operations, as these may have changed. Holders of existing wildlife permits that are continued should be aware a new application may be required at the end of their existing permit.

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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.