The main South Australian Acts dealing with the protection of the natural environment are the National Parks and Wildlife Act 1972 (SA), the Native Vegetation Act 1991 (SA) and the Natural Resources Management Act 2004 (SA). Also important are the Wilderness Protection Act 1992 (SA), the Coast Protection Act 1972 (SA) and the Marine Parks Act 2007 (SA) as well as the various resource Acts such as Fisheries, Pastoral, Mining and Petroleum.
The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth) provides for the protection of Commonwealth protected areas and nationally-listed endangered species.
The Wilderness Protection Act 1992 (SA) enables the creation of wilderness protection areas and wilderness protection zones which represent the highest level of protection offered to natural areas in South Australia. The Act covers areas of crown land, or with permission of the owners, private land which satisfy the 'wilderness criteria' to justify protection as, or restoration to, wilderness. The criteria require that the land and its ecosystems must not have been affected, or at least only to a minor extent, by modern technology and must not have been seriously affected by exotic animals, plants or other exotic organisms. The Act also allows buffer zones or boundaries to be adopted to enable wilderness protection.
Up until 2001, only a few wilderness protection areas were declared under the Act, all of them within existing National Parks and Wildlife Act Reserves on Kangaroo Island and Eyre Peninsula. In recent years, more places have been declared or proposed as wilderness in outback areas.
Once an area is declared to be a wilderness protection area or zone it ceases to be a reserve under the National Parks and Wildlife Act 1972 (SA). A wilderness protection area or zone cannot be abolished, altered or have its name changed without a resolution passed by both Houses of State Parliament. Mining is restricted in wilderness protection areas and zones to activities allowed by proclamation of the Governor. Grazing and primary production is prohibited, as are the construction of roads, tracks, buildings or structures, unless specifically authorised by the plan of management for the particular wilderness protection area or zone.
Under the National Parks and Wildlife Act 1972 (SA) reserves for the benefit and enjoyment of the public and for the conservation of wildlife in a natural environment are created. Even though the word "national" is used in the Act, this is State legislation, and reference is to the national significance of reserves rather than any notion of them being nationally managed. The Act also covers the protection of native animals throughout the State and native plants within reserves. The Act establishes five categories of reserve.
National Parks - are areas of major national scientific or ecological value also suitable for public use.
Conservation Parks - areas not necessarily of national significance but of particular scientific or ecological value. Camping and other recreational activities are permitted but are not encouraged
Game Reserves - areas used for controlled hunting (eg. duck shooting)
Recreation Parks - areas set aside for mainly recreational use
Regional Reserves - multiple use areas, in which conservation takes place beside other controlled land use such as mining and grazing. Reserves have a fairly secure status with any abolishment or boundary change requiring a resolution of both Houses of Parliament.
Management of reserves is through a process of formal Management Plans prepared by the State Department for Environment and Water and adopted by the Minister. The process of preparing management plans for reserves involves public participation through written submissions. Most of the largest and most popular reserves have management plans in place, however most small reserves do not. A complete list of the various management plans is available from the DEWNR.
Another statutory body involved in the development of management plans for reserves is the South Australian National Parks and Wildlife Council. Other functions of the Council include advising the Minister on the management of reserves, the conservation of wildlife, funding and commercial activities in reserves, assessment of the performance of the Department for Environment and Water and the development of policy and community participation. The Council and the Minister are supported by special advisory committees which can advise on a range of wildlife management issues such as the harvesting and farming of wildlife, management plans for particular reserves or the involvement of Aboriginal people in the management of land and wildlife.
Another, less common, method of setting aside land for conservation is through sanctuaries. Sanctuaries can be created over private or public land and provide a level of protection for wildlife similar to that in reserves [see National Parks and Wildlife Act 1972 (SA) s 44]. To investigate the creation of a sanctuary on private land, contact the Department for Environment and Water.
The Minister can declare a part of a reserve to be a prohibited area if the Minister considers that it is necessary for the protection of human life or the conservation of native plants or animals. This must be done by notice published in the Government Gazette and the notice must give the grounds for the decision. A person who enters a prohibited area without a permit issued by the Minister is liable for a fine of up to $1 000 [see National Parks and Wildlife Act 1972 (SA) s 42].
Whilst terrestrial protected areas such as National Parks have been established for over 100 years, the idea of underwater parks is relatively new. In South Australia there are two types of marine protected areas - Aquatic reserves and marine parks. Aquatic reserves are created under the Fisheries Management Act 2007 (SA) and marine parks are created under the Marine Parks Act 2007 (SA). Of the two, marine parks have the greater status and level of protection. There are no specific criteria for the selection of aquatic reserves.
The Marine Parks Act 2007 (SA) provides for a system of marine parks for the State and is designed to protect and conserve marine biological diversity and habitats by providing a proper system for the management of marine parks.
The boundaries of South Australia’s marine parks are proclaimed pursuant to section 10 of the Marine Parks Act 2007 (SA) in the Marine Parks Proclamation 2009 (SA). On 29 November 2012 three of South Australia's 19 marine parks had further areas added to them and each park had a new management plan released. The maps and management plans for each of the parks are available through the Find a Park page on the South Australian Department for Environment and Water website (click here).
Each park contains various zones. There are currently four types of zones namely general managed use, habitat protection, sanctuary and restricted access [Marine Parks Act 2007 (SA) s 4]. Each zone varies in the level of protection given to marine biodiversity.
Whilst the status of “marine park” offers a level of protection for the natural values of that park, it is important to note that commercial exploitation is not necessarily excluded. This includes new uses as well as pre-existing rights. The management regime for marine parks is similar to that for terrestrial parks in that plans of management are adopted which guide management decision-making. The management planning process includes opportunities for public comment.
Marine parks came into operation on 1 October 2014. See more at: http://www.environment.sa.gov.au/marineparks/home.
Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) provides for the establishment and management of five different Commonwealth protected areas. These are:
- World Heritage Properties
- Ramsar Wetlands
- Commonwealth Reserves
- Conservation Zones, and
- Biosphere Reserves.
The Commonwealth can submit properties for inclusion on the lists for these protected areas, for example the World Heritage List or the List of Wetlands of International Importance, only after seeking the agreement of the relevant States, Territories and land holders. For properties that are entirely on Commonwealth land, the Minister must prepare management plans for the property. For all other properties the Minister must prepare and implement management plans in co-operation with the relevant State or Territory authority. A Commonwealth Reserve can only be declared over an area of land or sea that:
- the Commonwealth owns or leases
- is in a Commonwealth marine area, or
- is outside Australia and that the Commonwealth has international obligations to protect.
Upon proclamation the Reserve is assigned to a particular category that affects how the Reserve is managed and used. Management plans restrict the type of activities that can be undertaken in the Reserves. Other restrictions are imposed by Regulations under the Act. The Act also provides for land to be leased from indigenous people and jointly managed for conservation purposes. The Governor-General can declare a Commonwealth area a Conservation Zone. This protects the biodiversity within the area while it is being assessed for inclusion in a Commonwealth Reserve. Activities within these areas can be regulated by Regulations. People who have existing rights relating to the area that is later included in a Conservation Zone can continue to exercise those rights within the Zone. A Zone can be revoked if the Minister is satisfied that the area should not be included within a Commonwealth Reserve.
As well as creating reserves, the National Parks and Wildlife Act 1972 (SA) also provides for the protection of native flora (everything from trees to wildflowers) within reserves and native fauna (animals) occurring inside and outside reserves. The Act contains schedules of protected and unprotected animals as well as lists of species regarded as rare, vulnerable or endangered.
A person who takes protected flora from a reserve, Crown land, a public reserve including a street or road or a forest reserve, may be fined up to $10 000 or jailed for two years in the case of native plants of endangered species [see s 47]. The same penalties apply for the taking of prescribed species of native plants from private land. A person may take non-prescribed species from private land with the consent of the owner, however such plants may also be covered by the Native Vegetation Act 1991 (SA), which prohibits destroying or harming native vegetation outside the Adelaide Metropolitan area. The penalty for taking plants without consent is $1 000 [s 47(4)].
The Minister may grant a permit authorising the taking, sale and giving away of native plants with conditions specified. In the absence of such a permit it is an offence for a person to sell or give away native plants or prescribed species unless the plant was taken by the holder of the licence issued under the Forestry Act 1950 (SA). The maximum penalty is $10 000 or imprisonment for two years in the case of a plant of an endangered species. The same penalties apply to the offence of possessing a native plant that has been illegally taken or acquired [see ss 48 and 48A].
The Native Vegetation Act 1991 (SA) was a progressive piece of legislation designed to prevent the continued broad scale clearance of native vegetation for agriculture and urban development in South Australia. The Act applies throughout the State and covers both private and public land. The objects of the Act include [s 6]:
1. the provision of incentives and assistance to landowners in relation to the preservation, enhancement and management of native vegetation; and
2. the conservation of the native vegetation of the State in order to prevent further reduction of biological diversity and further degradation of the land and its soil
Native Vegetation is defined in the Act as:
"a plant or plants of a species indigenous to South Australia (ie. naturally occurring local native plants) including a plant or plants growing in or under waters of the sea but does not include:
1. a plant or part of a plant that is dead (unless declared by regulation to be native vegetation)
2. plant intentionally sown or planted (unless planted in compliance with a condition imposed by the Act or a Minister or statutory authority, etc under other relevant legislation)
This broad definition includes not only trees, but also shrubs, grasses, groundcovers, moss, lichen, reeds and seaweed. Recent amendments to the Act cover dead trees that provide habitat for endangered species.
The primary obligation imposed by the Act on land holders and others is to not clear native vegetation unless the clearance is in accordance with the Act. Approval to clear native vegetation can be granted by the Native Vegetation Council - a statutory body established under the Act. In other cases, clearance may be undertaken pursuant to exemptions contained in the Native Vegetation Regulations [see below]. Another important limitation is that the Act does not apply to native vegetation growing in the Adelaide Metropolitan Area (but does apply in some parts of some councils covering the foothills of the Mount Lofty Ranges ). If in doubt, contact the Native Vegetation Secretariat in the South Australian Department for Environment and Water (click here).
Clearance of native vegetation under the Act is defined broadly and includes almost anything that can be done to kill or harm native vegetation including burning, chopping limbs or anything else that causes substantial damage [Native Vegetation Act 1991 s 3].
In exercising its powers to grant permission to clear native vegetation, the Native Vegetation Council is bound by a set of Principles of clearance [see Schedule 1 of the Act]. These principles include broad objectives aimed at preserving biological diversity. The result of the Native Vegetation Council applying these principles is that most applications for broad acre clearance to clear are refused. On the other hand, applications to clear individual or scattered trees are usually approved.
Under an earlier version of the Act, applicants (mostly farmers) who were refused permission to clear could get compensation from the government. This had the effect of increasing the number of applications and decreasing the resources of the Department. The current Act has no provision for compensation, although financial assistance is available to help land holders fence or otherwise manage native vegetation on their properties.
Exemptions from the need to apply for native vegetation clearance approval cover a wide range of activities such as road building and firewood collection. No permission is required to clear vegetation for firebreaks, building construction or along fence lines. The exemptions cover many pages of regulations and advice should always be sought before attempting any clearance pursuant to exemptions as penalties for illegal clearance are severe.
As well as preventing clearance of native vegetation, the Act also provides for existing native vegetation to be protected and managed. One of the key tools is the use of Heritage Agreements. These agreements are legally binding contracts whereby the owner of the land agrees to manage the land for conservation. The Heritage Agreement does not affect the ownership of the land, however it does bind subsequent purchasers because the agreement is noted on the certificate of title to the land. To date, more than half a million hectares of privately owned bushland has been protected under Heritage Agreements. Information booklets covering the Act are available free of charge from the South Australian Department for Environment and Water.
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 Natural Resources Management Act 2004 (SA) is designed to promote sustainable and integrated management of the State’s natural resources and to ensure adequate provision is made for their protection. In particular, this Act provides for the protection and management of catchments and the sustainable use of water resources, seeking to enhance and restore already degraded water resources.
This Act repealed the Water Resources Act 1997 (SA), which previously dealt with a large proportion of water issues. The Act assigns the Minister responsibility to develop and promote the use of management programs and practices which aid in the protection of the State’s natural resources.
The Act also provides for the establishment of the Natural Resources Management Council who are to assist the Minister in the administration of the Act and to monitor and evaluate policies surrounding the areas of the Act. The Council is also required to prepare and maintain a plan, the State Natural Resources Management Plan, which aims to identify the current condition of natural resources within the state and identify future risks and provide for monitoring and evaluating these resources. Water allocation plans are prepared for each region of the State by regional NRM boards.
On 1 January 2013 the Water Industry Act 2012 (SA) repealed the Sewerage Act 1929 (SA), the Waterworks Act 1932 (SA) and the Water Conservation Act 1936 (SA) and created a new legislative foundation for South Australia's water industry. All references in this section are to the Water Industry Act 2012 (SA) unless otherwise stated.
The Act is designed to promote planning, efficiency, competition and innovation in the water industry, protect the interests of consumers and provide mechanisms for transparent price setting and the enforcement of standards of reliability and quality.
The Act regulates the water industry both economically and technically.
The Essential Services Commission of South Australia is the economic regulator, responsible for licensing, creating industry codes with which water and sewerage servicesmust comply and making final retail price determinations.
A Technical Regulator is responsible for creating standards for plumbing work and water infrastructure and giving warnings to the public in relation to the use of unsuitable equipment or practices. Authorised officers of the Technical Regulator have special powers to enter and inspect, restrict, disconnect or give directions in relation to water supply. The Technical Regulator may require information or documents and issue enforcement notices relating to compliance with the Act.
The Act also sets out responsibilities on the part of consumers to prevent water running to waste (punishable by fine of up to $2 500) [s 69] and the ability of the State Government, through the Governor, to take water conservation measures, such as restricting the purposes for which water may be used [s 92]. The following offences are some of those set out in the Water Industry Regulations 2012 (SA):
- cleaning a motor vehicle or boat from other than bucket, watering can, high pressure low volume water cleaner or a hand-held hose fitted with a trigger nozzle [sch 4 reg 3];
- watering gardens or grounds other than by hand-held hose fitted with trigger nozzle, through drip irrigation system or sprinkler between the hours of 5 pm and 10 am [ sch 4 reg 4]; and
- using water to hose down an external area covered by paving, concrete, bitumen or like unless necessary to protect public health, ensure the safety of people and animals by high pressure low volume water cleaner or hand-held hose fitted with a trigger nozzle [sch 4 reg 5].
The maximum penalty for these offences is a fine of up to $10 000 (or an expiation fee of $315) [reg 40].
The Act maintains the Save the River Murray Levy and Fund, through which a proportion of rates is dedicated to improving the health of the river and ensuring the adequacy, security and quality of South Australia's water supply [ss 93 and 94].
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.