• 
• 
• 

You are here: Agriculture » About Agriculture » Legislation and Regulation » Your Responsibilities » Biodiversity Management

Biodiversity Management: Legal Booklet

Contents

• About the booklet
• Key terms, acronyms and abbreviations
• Introduction
• Relevant laws, guidelines and Codes
• Roles and responsibilities
• Legislation and the farmer
• Further information

Key terms

Biodiversity – The variety of life forms: the different plants, animals and micro-organisms, the genes they contain, and the ecosystems of which they form a part.

Catchment – A structure, such as a basin or reservoir, used for collecting or draining water

Genetic diversity – The variety of genetic information contained in individual plants, animals and micro-organisms.

Ecosystem – A biological community and its environment. All the dynamic interactions between plants, animals, and the physical environment in which they live make up an ecosystem.

Invertebrate animals – Animals without backbones

Land owner – The owner or occupier of land.

Protected flora – Any flora which is declared to be protected by Order of the Governor in Council published in the Government Gazette, and any flora which is part or member of a listed taxon or community. See DSE website for the up to date list.

Protected wildlife – All wildlife other than pest animals (within the meaning of the Catchment and Land Protection Act 1994) or wildlife specifically declared not to be protected.

Threatened wildlife – Protected wildlife that is specified in any list made under section 10(1) of the Flora and Fauna Guarantee Act 1988. These lists can be found on the DSE website.

Vertebrate animals – Animals with backbones.

Acronyms / abbreviations

• CaLP Catchment and Land Protection Act (1994)
• CMA Catchment Management Authority
• DSEWPaC Department of Sustainability, Environment, Water, Population and Communities
• DPI Department of Primary Industries
• DSE Department of Sustainability and Environment
• EPA Environment Protection Authority
• EPBC Act Environment Protection and Biodiversity Conservation Act (1999)
• FFG Act Flora and Fauna Guarantee Act (1988)
• ICO Interim Conservation Order
• SEPPs State Environment Protection Policies

Introduction

Australia has a large number of species and ecological communities that are under threat of extinction, mostly due to land clearing and related loss of habitats. Land owners should be aware of their responsibilities to prevent further damage to the natural resource base and to protect biodiversity.

Victorian farmers have a number of legal obligations in managing biodiversity on their farms. It is important to check the legal implications of any action that may affect native plants and animals.

Native vegetation contributes to water quality, landscape values and long-term productivity of the land. Healthy, diverse farming systems may be more resilient to change. Diversity of plants and animals is necessary to support the natural environment.

Maintaining biodiversity is much more than just protecting wildlife and their habitats in nature conservation reserves

– it is about improving the balance within a farm business.

The Australian Terrestrial Biodiversity Assessment in 2002 identified approximately 2,891 threatened ecosystems and communities in Australia. As of June 2002, the total number of threatened species listed under the Environment Protection and Biodiversity Conservation Act 1999 was 1595.

Each State and Territory in Australia also has legislation that allows listing of endangered or threatened species. The criteria used for listing at State and national levels can differ, so species and ecological communities can be listed under both State and national legislation, or under only one of these.

The listing of a species, ecosystem or ecological community as 'threatened' triggers special management attention to try to ensure that the population numbers or areas of the communities do not decline further and have a chance to recover. This special management may include addressing the threatening processes (such as land clearing, predation by feral species or salinity) as well as measures such as captive breeding or relocation of animals, or cloning or seed banking of plants.

Not allowing species and communities to reach crisis point is the smarter and more effective way of ensuring their survival. Managing all properties to minimise their impacts on the environment and maximise their biodiversity will assist native species and communities to survive, as well as minimising farmers' liability under the State and Federal legislation.

Roles and responsibilities

The management of biodiversity on farms is a shared responsibility between all three levels of government (Australian, State and Local) and land owners.

The Australian Government administers the Environment Protection and Biodiversity Conservation Act 1999 which ensures the protection of Australia's unique biodiversity at a national level.

The Victorian Government administers a comprehensive legislative framework that addresses natural resource and environment management, conservation and sustainable utilisation. The Flora and Fauna Guarantee Act 1988 and the Wildlife Act 1975 – administered by the Department of Sustainability and Environment (DSE) – are the primary Acts dealing with biodiversity conservation and sustainable use of native flora and fauna.

Under the Environment Protection Act 1970, it is an offence to cause land, air, water or noise pollution. The Environment Protection Authority (EPA) administers this legislation in co-operation with local Councils.

The EPA has established audit protocols for river health including environmental flows and biological indicators of stream and river health. The EPA works in partnership with DSE, the Department of Primary Industry, Catchment Management Authorities and other stakeholders to facilitate the adoption of clean agricultural practices which provide both environmental and economic benefits. Victoria's native vegetation is protected by law, and various offences apply to actions concerning native plants. It is sensible for land owners to check with your local Council and DSE (call 136 186) before starting any work that could affect native vegetation.

Relevant laws, guidelines and Codes

Legislation and policy at international, national, state and local government levels reflect the community's aspirations for nature conservation. They direct mandatory and voluntary protection and management of native biodiversity.

International conventions

There are a number of international agreements (e.g. the Japan-Australia Migratory Birds Agreement, the China-Australia Migratory Birds Agreement, the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Ramsar Convention on Wetlands) that encourage the protection and conservation of wetlands or habitats of international significance.

The Convention on Biological Diversity is an international, legally binding treaty that was adopted in Rio de Janeiro in June 1992 that is often seen as the key document regarding sustainable development. It has three main goals:

• Conservation of biological diversity (biodiversity)
• Sustainable use of its components
• Fair and equitable sharing of benefits arising from genetic resources.

Its objective is to develop national strategies for the conservation and sustainable use of biological diversity. It is often seen as the key document regarding sustainable development.

National legislation

Environment Protection and Biodiversity Conservation Act 1999

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Government's central piece of environmental legislation. It provides a legal framework to protect and promote the recovery of threatened species and ecological communities, and preserve significant places from decline. The EPBC Act established the use of Environment Protection and Biodiversity Conservation Regulations, which provide for the issuing of approvals and permits for a range of activities on Commonwealth land and land affecting the Commonwealth. Failure to comply with the Act can result in penalties including remediation of damage, court injunctions, and criminal and civil penalties.

This Act regulates the importation of plants and animals via the Live Imports List. This lists what plants and animals can be brought into the country. Any person wishing to bring a plant or animal into the country that is not on the Live Imports List must apply to the Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) to do so. See www.environment.gov.au/biodiversity/trade-use/lists/import/index.html

The Act identifies various matters of national environmental significance:

• Wetlands of international importance (as defined by the Ramsar Convention on Wetlands)
• World Heritage properties
• National heritage places
• Listed threatened species and ecological communities
• Listed migratory species
• Commonwealth marine areas.

The EPBC Act comes into play when a proposal has the potential to have a significant impact on one of the above matters of national environmental significance. When a person wants an action assessed for environmental impacts under the EPBC Act, he or she must refer the project to DEWHA. This 'referral' is then released to the public, as well as relevant State, Territory and Commonwealth ministers, for comment on whether the project is likely to have a significant impact on matters of national environmental significance. The minister or the minister's delegate will then decide whether the likely environmental impacts of the project are such that it should be assessed under the EPBC Act.

State legislation

A range of legislation covers the protection of biodiversity in Victoria.

Catchment and Land Protection Act 1994

The Catchment and Land Protection Act 1994 (CaLP Act) develops a framework for integrated management and protection of catchments via Regional Catchment Strategies. The Act provides for the development of regional catchment strategies which, among other things, must assess the nature, causes, extent and severity of land degradation of the catchments in the region and identify areas for priority attention. Local Planning Schemes must have regard for the regional catchment strategies. Under the CaLP Act, land owners may be directed to control noxious weeds, including on roadsides adjacent to the farm (as noxious weeds may affect native biodiversity).

Environment Protection Act 1970

The Environment Protection Act 1970 is outcome oriented, with a basic philosophy of preventing pollution and environmental damage by setting environmental quality objectives and establishing programs to meet them.

This Act establishes the EPA and outlines its powers, duties, and functions. These include administering the Act and any regulations and orders made pursuant to it, recommending State Environment Protection Policies (SEPPs) to the Governor in Council, and issuing works approvals, licences, permits and pollution abatement notices.

The SEPPs provide more detailed requirements and guidance for the application of the Act to Victoria. There are SEPPs for air quality, land contamination, groundwaters and waters, amongst other things.

Flora and Fauna Guarantee Act 1988

The Flora and Fauna Guarantee Act 1988 (FFG Act) is designed to enable the conservation of Victoria's flora and fauna. It allows the listing of threatened species, threatened communities and potentially threatening processes. Once a species, process or community is listed, the Government prepares an Action Statement that sets out the actions to conserve and manage it. The Act also provides for the use of Interim Conservation Orders (ICOs) for the urgent protection of a critical habitat of a listed threatened species and community.

The Act makes it an offence to take, trade in, keep, move or process protected flora from all public land without a licence or permit. On private land, the taking and sale of protected flora, except tree-ferns, grasstrees or sphagnum moss, is permitted unless the taking is from land declared 'critical habitat' under the Act. The taking of tree-ferns, grasstrees or sphagnum moss for the purposes of sale requires a permit or licence under the Act. The Act also makes it an offence to take, trade in or keep without a licence any fish that are members of a listed species or community, with the exception that a person make take listed fish from, or keep listed fish in, a private dam or lake provided that the listed fish occurs naturally in the dam or lake, or the dam or lake was stocked in accordance with the Fisheries Act 1995 or the Fisheries Regulations 2009.

Local Government Act 1989

This Act assigns powers to local Councils to formulate by-laws and conservation regulations.

Planning and Environment Act 1987 – Clause 52.17 Native Vegetation in the Particular Provisions of all Municipal Planning Schemes

Under all Victorian Planning Schemes a planning permit is required to remove, lop or destroy native vegetation, including dead trees of a particular height or width, unless a relevant exemption applies. Native vegetation includes any and all locally native trees, shrubs, herbs and grasses. Planning schemes are administered by Local Governments.

Local Government may also develop and implement local policies and overlays, which may add additional permit conditions in relation to vegetation removal. A local Council can also protect rare wetlands and other biodiversity assets through their planning scheme.

Water Act 1989

This Act provides formal means for the protection and enhancement of the environmental qualities of waterways and their in-stream uses and the protection of catchment conditions.

Wildlife Act 1975 and Wildlife Regulations 2002

The Wildlife Act 1975 covers all wildlife, which is defined to include all native vertebrate animals, all kinds of deer, non-indigenous quail, pheasants, and partridges, and all terrestrial invertebrate animals listed under the Flora and Fauna Guarantee Act 1988. The Act regulates the hunting, trading and taking of wildlife.

Aboriginal Heritage Act 2006

The Aboriginal Heritage Act 2006 provides for the protection and management of Victoria's Aboriginal heritage. On-ground works to protect or enhance biodiversity must not contravene the Act.

Legislation and the farmer

Key questions for farmers about biodiversity management

Consider the following questions. If you are unsure of the answers to these questions, look through the table on the following pages for more information or phone DSE Customer Service Centre on 136 186.

• Is my land in an area declared as critical habitat for flora under the Flora and Fauna Guarantee Act 1988?
• Does an Interim Conservation Order affect my property?
• Am I taking treeferns, grass-trees or sphagnum moss for sale?
• Am I clearing 'native vegetation'? If so, do I fall within the planning scheme exemptions? If not, do I have a planning permit?
• Am I hunting 'threatened' or 'protected' wildlife?
• Am I hunting 'game'?
• Am I disturbing the habitat of wildlife?
• Am I catching listed fish?
• Are any of my activities having a 'significant impact' on matters of national environmental significance?
• Do I affect the biodiversity of my farm through breaches of the laws regarding water, chemical use, weeds, pests, pollution or soil degradation?

Farm activity or situation	On-farm obligations or implications
Critical habitat	Critical habitat determinations can be made under the FFG Act, which means an area with habitat critical to the survival of any community of flora or fauna is protected. After making a declaration, DSE must notify a land owner who is likely to be affected by the determination. The land owner can request that this information be withheld from general release. The listing of critical habitat does not require any specific action of the land owner at that time, however the taking of protected flora from the critical habitat is prohibited. The other implication is that the listing of this habitat may form the basis of an ICO (see below).
Interim Conservation Orders (ICOs)	An ICO can be made under the FFG Act which may affect a private land owner. An ICO aims to protect the declared critical habitat of a flora or fauna listed or nominated for listing under the FFG Act on land or water under Crown or private control. 'Listed' broadly means species in need of protection that are formally recognised as such under the Act. The ICO may achieve this aim by: – requiring the conservation, protection or management of flora, fauna, land or water within the critical habitat – prohibiting or regulating activities or processes on the land or water that is subject to the ICO or which may occur outside the area but which would affect the critical habitat – imposing requirements to undertake works or activities. Once the initial order has been made, all landholders of land within the critical habitat have 30 days to make submissions to DSE on whether it should remain. DSE then decides whether or not the ICO will continue. If so it will remain in force for two years unless an earlier period is specified. Compensation is available for land owners or other parties who experience financial loss as a natural direct and reasonable consequence of the making of an ICO. ICOs can override a planning scheme or activity under a licence or permit which relates to the habitat if the activities are regarded as opposed to the ICO. Appeal rights exist for those affected by ICOs.
Trading, taking or disturbing protected flora	A person cannot take, trade in, keep, move or process protected flora without a permit or licence. The word 'take' includes the killing, disturbance, injuring or collection of plants and this could, have ramifications for a private land owner. However, a land owner is not affected by the Act unless he/she takes for sale tree-ferns, grasstrees or sphagnum moss. There is also an exemption for propagated flora. This means that no authorisation is required under the FFG Act for the clearing of protected flora on private land (for purposes other than sale) unless there is a declared 'critical habitat' on the land and/or an ICO imposed on the property (see above). However, a permit may be required under the planning scheme and enquiries should be made of the local council. It is advisable to check the list of protected flora (which is available from DSE or its website) because, as mentioned above, the list can include some species which, while not threatened, may be regulated because they are sought after. These include grass trees and orchids. 'Flora' includes plant-life which is indigenous to Victoria at any stage of biological development, and therefore includes living parts (seeds, roots, shoots) and non-living (bark, leaves). This means the collection of seeds falls within the FFG Act and will require a licence or permit, unless taken from private land and not for sale.
Licence to take and trade in protected flora	DSE may issue a licence or permit to take and trade in protected flora.
Abandonment of flora	It is an offence under the FFG Act to abandon or release prescribed flora into the wild. For further information on what is 'prescribed flora' contact DSE.
Flora damaging crops	If DSE is of the view that listed flora is a serious cause of injury to property, crops and stock or other listed species, a permit may be issued for its control.
Native vegetation removal	'Native vegetation' includes all plants indigenous to Victoria including grasses. Native vegetation removal is regulated through local planning schemes. A permit is required to remove, lop or destroy any native vegetation unless a relevant exemption applies. There are exemptions for a range of activities including some for farming practices, fire prevention and removal of regrowth and planted vegetation, However you should consult with your local Council to determine if these apply. If you require a permit you should apply to the Planning Department of your local Council. They will also be able to give you advice on removing native vegetation. Local Councils are responsible for making decisions in relation to permits for clearing of native vegetation. They may, however, refer the matter to DSE, which, in some instances, will make a decision that is binding on the Council. In deciding whether to approve the application for a permit, the Council and/or DSE will take a number of factors into consideration, which may include: – whether native vegetation removal can be avoided or minimised – the conservation significance of native vegetation – the role of native vegetation in protecting water quality and preventing land degradation.
Lands adjoining State Forests	Under the Conservation, Forests and Lands (Infringement Notice) Regulations 2002, it is an offence to such as clear, damage or remove vegetation from a State Forest or a road that adjoins a State Forest. Land owners with properties adjoining State Forests and similar land owned by the Crown should be conscious of their boundaries so they do not unwittingly breach these laws.
Disturbing wildlife habitat	A person is prohibited from wilfully damaging, disturbing or destroying wildlife habitat, unless they are authorised to do so. The term 'wildlife' is discussed below.
Hunting or destroying wildlife	You must not hunt, take or destroy threatened or protected wildlife unless you are authorised to do so under the Wildlife Act 1975 and corresponding regulations. 'Wildlife' is defined to include any vertebrate animal indigenous to Australia, terrestrial invertebrates that are listed under the FFG Act and some non-indigenous species such as deer, quail, pheasants and partridges. Hunting or destroying game out of season is also an offence. The Government declares animals belonging to the game category. Enquiries should be made of DSE on these categories. There are parallel offences for acquiring (without authorisation) threatened or protected wildlife.
Taking listed fish	It is an offence for a person to take, trade in or keep listed fish under the FFG Act, with the exception that a person make take listed fish from, or keep listed fish in, a private dam or lake provided that the listed fish occurs naturally in the dam or lake, or the dam or lake was stocked in accordance with the Fisheries Act 1995 or the Fisheries Regulations 2009. Accidental taking of the listed fish is not an offence if reasonable care is taken and the fish are returned to the wild in a viable state. DSE can issue a licence to take, trade in or keep listed fish. A standard licence under the Fisheries Act 1995 does not include the rights to take listed fish.
Wildlife Act 1975 and Wildlife Regulations 2002	The Wildlife Act 1975 and Regulations 2002 contain a number of offences such as: – being in possession of wildlife unlawfully taken – owning cats or dogs that attack wildlife on public land – killing wildlife with poison – disturbing protected wildlife – entry to a prohibited area unless authorised – keeping wildlife (there are some exceptions for native birds kept as pets).
Offences in State Wildlife Reserves, Nature Reserves and sanctuaries	It is an offence to take, destroy, hunt or disturb wildlife in a State Wildlife Reserve, a Nature Reserve, or a sanctuary. It is also an offence to take sand or soil from a Wildlife Reserve or Nature Reserve to dump rubbish there.
Licences to trade in wildlife	DSE can issue licences for a person to take, destroy, house or generally trade in wildlife. The Wildlife Act 1975 contains powers for DSE to impose conditions and cancel licences.
Authorisations to hunt wildlife damaging crops, etc	DSE may grant an authorisation to a person to hunt, keep or destroy wildlife if the wildlife is damaging pasture, crops, etc. There are powers to impose conditions and also to cancel the authorisation.
Actions causing 'significant impact' on the national environment	The Environment Protection and Biodiversity Conservation Act 1999 (Cth) makes it an offence to undertake an activity which has significant impact on a matter of national environmental significance without referring it to the Federal Environment Minister. DSEWPaC has issued administrative guidelines for what may be regarded as having 'significant impact' for the purposes of the Commonwealth law. See www.environment.gov.au/epbc Some examples of activities that could fall under this law are: action by a land owner which endangered a listed threatened species (nominated under the Act) that was present on the land, or disrupting the breeding cycle of an important bird population by clearing the habitat.
Policies and strategies	Apart from any laws that might affect biodiversity there are a range of strategies that encourage land owners to use practices which preserve biodiversity. Examples are: – 'Securing our Natural Future' – a white paper for land and biodiversity at a time of climate change (see Further Information) – Victoria's Native Vegetation Management: A Framework for Action – Regional Catchment Strategies and other plans – Victorian Pest Management Framework.