As a general rule, all native Australian animals are protected by law. State laws cover thetaking of protected animals and Commonwealth laws cover exporting or smuggling of wildlife.
Under the National Parks and Wildlife Act 1972 (SA), any person who takes a protected animal or the eggs of a protected animal can face penalties as significant as a fine of up to $100 000 or imprisonment for two years, depending on the type of animal or egg being taken [see s 51]. The most serious penalties apply where the animal is of an endangered species. Protected animals can, however, be taken in certain circumstances during an open season proclaimed by the Minister or under a permit issued by the Minister [see ss 52 and 53]. A person who has applied for, and been refused, a permit can seek a review of that decision in the South Australian Civil and Administrative Appeals Tribunal (SACAT) [see s 53A].
As well as the offence of taking a protected animal, severe penalties also apply to:
- keeping and selling protected animals without a permit; or
- possessing an animal taken illegally; or
- exporting and importing protected animals without a permit; or
- using poison to take a protected animal; or
- injuring or molesting a protected animal.
The Act allows the management and sustainable use of native plants and animals including trial farming of native plants and animals, commercial harvesting of native animals and the raising and selling of native plants for commercial purposes.
Commercial harvesting of native animals is allowed under certain circumstances. Red kangaroos, western grey kangaroos and euros (wallaroos) may be harvested if a plan of management has been prepared and adopted by the Minister. The plan must address a range of issues including the impact of harvesting on the species and ecosystems; protection of the environment, crops, stock and property; methods and procedures for capture or killing; and consultation with the community. Once a plan is adopted it is published in the Government Gazette. Commercial harvesting may apply to other species of protected animals only if permitted by regulation.
The enactment of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth) has increased the level of protection for threatened species and ecological communities by making them a matter of national environmental significance. Actions within Australia that have, will have or are likely to have a significant impact upon a listed threatened species or ecological community will trigger the Commonwealth Act. Lists of threatened species and ecological communities are made by the Commonwealth Minister and can be found on the website of the Department of the Environment and Energy (Cth).
“Significant impacts” under the Commonwealth EPBC Act are explained in the Significant Impact Guidelines prepared by the Minister and include activities that are likely to:
- lead to a long term decrease in the size of the population;
- reduce the area of occupancy of the species;
- fragment an existing population into two or more populations;
- adversely affect the habitat critical to the survival of the species; or
- disrupt the breeding cycle of the population.
The Commonwealth Act also protects listed migratory species (mostly birds) from actions that have, will have or are likely to have an impact on that species. Under the Significant Impact Guidelines, the action will have a significant impact if it:
- substantially modifies, destroys or isolates an area of important habitat of the migratory species;
- results in an invasive species that is harmful to the migratory species becoming established within an important habitat area of that migratory species; or
- seriously disrupts the breeding, feeding, migration or resting cycles of an ecologically significant proportion of the population of the species.
Lists of migratory species must include any species that are listed under relevant international conventions, for example the JAMBA and CAMBA Conventions and the Bonn Convention. These lists can be found on the Department of Environment and Energy (Cth) website.
An important distinction to note between the Commonwealth and State lists of endangered species is that the State lists mainly refer to the severity of the penalty for illegal taking; whereas the Commonwealth lists determine whether or not a particular development or proposal requires formal government assessment and approval. The State and Commonwealth lists are not the same, therefore both should be consulted.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.