Western Australia is Australia's largest State, with a coast line 12,500 kilometres long and a land area of over 2.6 million square kilometres. Within this expansive area is a diversity of landscapes and climatic conditions. Subsequently, the state is home to various rare flora and fauna such as the Quokka of Rottnest Island and Gilbert's Potoroo, Australia's most endangered mammal. The south-west botanical province, in particular, is regarded as one of the 25 “hot-spots” for biodiversity in the world.

The rarity of many of these species has been exacerbated over time by environmental damage caused by land clearing, grazing native vegetation, pollution and the introduction of foreign pests, diseases and other human processes. Subsequently, many of Western Australia’s native plant and animal species have become extinct or are endangered. This illustrates the considerable need for the law to protect Western Australian biodiversity. How Western Australian law fulfils this need is described below.

Quokka of Rottnest Island

Western Australia's environment is afforded protection under various state and local laws (described below). Although legislation that directly protects biodiversity does exist in Western Australia - most notably the Wildlife Conservation Act 1950 - these laws do not protect biodiversity to the same extent as legislation in place in other Australian jurisdictions.

The Environmental Protection Act 1986 and its subsidiary legislation, such as the Environmental Protection Regulations 1987, protect the environment by controlling damaging activities and protecting vulnerable areas. The Environmental Protection Authority is responsible for administering the Environmental Protection Act 1986, and must use its best endeavours to protect the environment and prevent, control and abate pollution and environmental harm. This is achieved in various ways, for example, the Act provides mechanisms to charge a person for causing material or serious environmental harm. The Act has also generated a system of environmental impact assessment to assess the environmental impacts of major developments on threatened species. Environmental protection policies may also be implemented under the Act.

Regional and Local Planning Schemes created under the Planning and Development Act 2005 (WA) may include measures aimed at the protection of the environment. These planning schemes are legally binding.

Another way Western Australian law protects biodiversity is through the creation of conservation reserves. National parks, conservation parks, nature reserves, state forests and timber reserves are commonly set aside by the Conservation Commission of Western Australia to conserve the environment, under the management of the Department of Environment and Conservation. The Conservation Commission develops policies and provides independent advice to the Minister for Environment with respect to conservation, the management of ecological biodiversity and the application of ecologically sustainable forest management.

The following reserves may help to protect biodiversity:

• State forests, timber reserves, national parks, conservation parks, nature reserves and marine reserves created under the Conservation and Land Management Act 1984 (WA);
• Soil conservation reserves created under the Soil and Land Conservation Act 1945 (WA);
• Reserves created under the Land Administration Act 1997 (WA);
• Privately created reserves, that is, agreements entered into between land owners and public authorities (such as the Department of Environment and Conservation) to have land set aside for conservation purposes, which if registered on title are legally binding on subsequent land owners; and
• Specific controls for certain areas, such as Rottnest Island, Kings Park and the Abrolhos Islands.

A number of laws and mechanisms are available in Western Australia which protect biodiversity by controlling processes which threaten wildlife. The following threatening processes are controlled in Western Australia:

• Land clearing: The Environmental Protection Act 1986 requires a permit to be obtained before land may be cleared;
• Drainage: Drainage of ground-water for salinity reduction purposes is subject to environmentally sustainable restrictions;
• Mining: Mining leases must be issued before mining;
• Pastoral land management: Pastoral leases must be issued;
• Land degrading activities: The Commissioner of Soil and Land Conservation can issue soil conservation notices to control activities likely to lead to land degradation;
• Vehicle movement: The Control of Vehicles (Off-road Areas) Act 1978 places controls on vehicular movement in sensitive areas;
• Plant and animal controls: Landholders are required to control declared animals and plants on their land;
• Chemical controls: The use, transportation and disposal of chemicals is subject to restrictions; and
• Genetically Modified Organisms: The release of GMOs is subject to restrictions.

Finally, Western Australian biodiversity is directly protected under the Wildlife Conservation Act 1950 (WA). The Fish Resources Management Act 1994 (WA) also protects Western Australia’s aquatic species. The application of these Acts is explained in further detail below.

In 2003 the Western Australian government released a consultation paper on the proposed Biodiversity Conservation Act , and written submissions on the paper were sought from members of the public and interested stakeholders. However it appears that to date no further action has been taken towards the creation of a Western Australian Biodiversity Conservation Act.

The Wildlife Conservation Act 1950 (WA) and the Fish Resources Management Act 1994 (WA) are the primary pieces of state legislation that protect Western Australian biodiversity.

The Wildlife Conservation Act 1950 (WA) is administered on behalf of the Conservation Commission of Western Australia by the Department of Environment and Conservation.

The Fish Resources Management Act 1994 (WA) is administered by the Western Australian Department of Fisheries.

The Wildlife Conservation Act 1950 (WA) divides its protection of biodiversity into:

• Protection of flora; and
• Protection of fauna.

The protection afforded to flora and fauna under the Wildlife Conservation Act is described below under ‘offences’.

Two categories of flora are protected under the Wildlife Conservation Act 1950 (WA):

• Protected flora; and
• Rare flora.

Protected flora

'Protected' flora refers to the species of flora which satisfy the definition of 'flora' under the Wildlife Conservation Act 1950 (WA), being any plant (including any wildflower, palm, shrub, tree, fern, creeper or vine) which:

• is native to Western Australia; or
• is declared to be protected flora by the Minister for the Environment by publishing a list of protected flora in the Government Gazette.

Rare flora

‘Rare’ flora is afforded additional protection under the Wildlife Conservation Act (see below for details). ‘Rare’ flora is any species of flora declared by the Minister for the Environment and published in the Government Gazette as being rare due to the species being likely to become extinct or otherwise in need of special protection. The Minister's determination will be based on the advice of the Department of Environment and Conservation.

The list of species currently declared by the Department of Environment and Conservation to be threatened can be viewed here.

Two categories of fauna are protected under the Wildlife Conservation Act 1950 (WA):

• Protected fauna; and
• Rare fauna.

Protected fauna

'Protected' fauna refers to the species of fauna which satisfy the definition of 'fauna' under the Wildlife Conservation Act 1950 (WA), being any animal (including eggs, fur, skin etc) which:

• is native to Australia; or
• periodically migrates to Australia; or
• is declared to be protected by the Act (either generally or in relation to a specific time or place) by the Minister for the Environment by notice.

The Minister for the Environment may also declare that fauna that is ordinarily protected due to it being native or migratory to Australia is not protected by the Wildlife Conservation Act.

Rare fauna

The Minister for the Environment may additionally declare that a species of fauna is likely to become extinct, is rare, or is otherwise in need of special protection. This is known as rare fauna. The Minister's determination will be based on the advice of the Department of Environment and Conservation.

The list of species currently declared by the Department of Environment and Conservation to be threatened can be viewed here. Species of fauna currently declared to be 'rare' include the Quokka, Gilbert’s Potoroo, Blue Whale and many others.

Although the Wildlife Conservation Act extends to the protection of aquatic species, in practice the protection of Western Australia's aquatic species is afforded by the Fish Resources Management Act 1994 (WA). The Fish Resources Management Act affords specific protection to all aquatic organisms (whether alive or dead) except aquatic mammals, aquatic reptiles, aquatic birds, amphibians or pearl oysters. Use of pearl oyster resources is regulated under the Pearling Act 1990.

The objectives of the Fish Resources Management Act include the conservation of fish, the protection of their habitat and to achieve optimal economic, social and other benefits from the use of fish resources. These objectives are met by employing a range of controls, such as size restrictions, bag and possession limits, the imposition of designated fishing zones or fishing seasons and the prohibition on certain classes of fishing. Fishing licences are issuable by the Department of Fisheries authorising fishing that would otherwise be illegal .

Certain classes of fish can also be declared to be:

• Totally protected fish;
• Commercially protected fish.

The resulting obligations imposed by the declaration of fish as 'totally' or 'commercially' protected is described below under 'Offences'.

Threatened species of flora and fauna that are subject to the Wildlife Conservation Act are listed pursuant to a declaration by the Minister for the Environment. The Minister's determination will be based on the advice of the Threatened Species Scientific Committee (TSSC). The TSSC is appointed by the Minister for the Environment, with administrative support provided by the Department of Environment and Conservation.

The process for listing is described by the Department of Environment and Conservation as follows:

1. The public is invited to submit nominations to add taxa to, or delete taxa from, the current lists.
2. The TSSC meets to review the nominations and makes recommendations to the Minister, via the Director General of Department of Environment and Conservation and the WA Conservation Commission.
3. The Minister for the Environment endorses or rejects the new nominations.
4. The lists are updated and published in the Western Australia Government Gazette, usually annually. The lists are published as the Wildlife Conservation (Specially Protected Fauna) Notice and the Wildlife Conservation (Rare Flora) Notice.

More information on the listing process and the public's involvement can be viewed here.

The list of species currently declared to be threatened can be viewed here.

Taking protected flora

On private land it an offence under the Wildlife Conservation Act to ‘take’ protected flora (including gathering, plucking, cutting, pulling up, destroying, digging up, removing or injuring the flora or causing or permitting such acts to be done) without the consent of the owner of the land.

If protected flora is taken from private land for the purposes of sale, it is illegal to take the flora without a licence.

On Crown land, it an offence under the Wildlife Conservation Act to ‘take’ protected flora (including gathering, plucking, cutting, pulling up, destroying, digging up, removing or injuring the flora or causing or permitting such acts to be done) without a licence or authorisation.

The maximum penalty for taking protected flora contrary to the Wildlife Conservation Act is $4,000 for each offence.

Taking rare flora

‘Rare’ flora is afforded additional protection under the Wildlife Conservation Act. The definition of ‘rare’ flora is above. The Act makes it illegal to take (kill or directly or indirectly interfere with) rare flora without written approval from the Minister for the Environment, regardless of whether the land is private or Crown land.

The maximum penalty for illegally killing or interfering with rare flora contrary to the Wildlife Conservation Act is $10,000 for each species taken.

Taking protected and rare fauna

The Wildlife Conservation Act makes it an offence to ‘take’ protected or rare fauna (including killing, capturing, disturbing, molesting or hunting the fauna or attempting or assisting in the taking of the fauna) without a licence or authority.

Unlike the provisions relating to declared rare flora under the Wildlife Conservation Act, the approval of the Minister for the Environment is not required to take a species of rare fauna.

The applicable penalty for taking fauna contrary to the Wildlife Conservation Act depends on whether the fauna is classified as ‘protected’ or ‘rare’. The maximum penalty for illegally taking ‘protected’ fauna is $4,000, while the penalty for illegally taking ‘rare’ fauna is $10,000.

Unlike the flora provisions of the Wildlife Conservation Act, the fauna provisions are not binding on the Crown.

Aquatic species

Fish declared to be 'totally' or 'commercially' protected under the Fish Resources Management Act 1994 are also the subject of restrictions or prohibitions.

It is an offence under the Fish Resources Management Act 1994 to take, possess, sell, purchase, consign or bring into Western Australia any totally protected fish.

It is an offence to take for the purpose of sale, possess for the purpose of sale, process for the purpose of sale, consign, sell or purchase any commercially protected fish.

It will also be illegal under the Fish Resources Management Act to fish recreationally for many types of fish species without a licence from the Department of Fisheries. A licence is also required to legally undertake any commercial fishing in Western Australia.

The penalties for breaches of fishing regulations vary, and are graded based on the severity of the breach.

As indicated above, the Department of Environment and Conservation can issue licences authorising the taking of flora and fauna protected by the Wildlife Conservation Act 1950(WA).

Specific activities involving fauna which require approval (usually in the form of a licence) from the Department of Environment and Conservation include:

• Farming/breeding fauna;
• Importing fauna into Western Australia;
• Exporting fauna (other than farm animals and domesticated pets) out of Western Australia;
• Selling native fauna (unless another Act authorises the sale);
• Processing fauna for the purposes of sale (excluding fish processed under a licence issued under the Fish Resources Management Act); or
• Releasing any animal not ordinarily found at liberty or keeping the animal in confinement for the purpose of releasing it.

Additional controls also apply to the manner in which fauna is kept, fed and transported.

As stated above, a person that wishes to sell protected flora taken from private land or take any kind of flora from Crown land must have a licence to do so from the Department of Environment and Conservation. Licences to take protected flora from Crown land may be granted for commercial or scientific purposes.

• Information on licences issued by the Department of Environment and Conservation can be found here.

Licences are also issued by the WA Department of Fisheries authorising the taking of aquatic species protected by the Fish Resources Management Act 1994.

• Information on fisheries licences can be found here.

Defences to taking flora

A person of Aboriginal descent is permitted under the Wildlife Conservation Act 1950 (WA) to take protected flora for food (on private land they must have the consent of the owner of the land). This defence does not apply to:

• 'rare’ flora; or
• flora located on a nature reserve or wildlife sanctuary; or
• flora taken for the purposes of sale.

A person that takes protected flora as a result of an ‘unavoidable’ incident or consequence in their performance of any right, power or authority conferred upon them under another Act cannot be convicted under the Wildlife Conservation Act for taking protected flora without a licence. An ‘unavoidable’ incident requires that there be no other option but for the person to take the flora. This defence does not apply to 'rare' flora.

Defences to taking Fauna

A person of Aboriginal descent is permitted under the Wildlife Conservation Act 1950 (WA) to take protected fauna for food. This defence does not apply to:

• 'rare’ fauna; or
• fauna located on a nature reserve or wildlife sanctuary; or
• flora taken for the purposes of sale.

It is also not an offence under the Wildlife Conservation Act to take protected fauna if the taking was authorised under an open season for that species declared by the Minister for the Environment. This means that at certain times of the year, or in particular parts of the state, 'protected' fauna may legally be taken.

As the fauna provisions of the Wildlife Conservation Act do not bind the Crown, State government departments may be able to rely on this as a defence.

Defences to taking aquatic species

Aboriginal peoples may not be required to hold a recreational fishing licence under the Fish Resources Management Act 1994 where they are fishing in accordance with Aboriginal tradition.

Western Australian law does not explicitly adopt the concept of 'threatening processes' in the same way that other jurisdictions have. A range of legislation does, however, limit processes which are threatening to the environment. These are explained at the top of the page.

As discussed above, the Threatened Species Scientific Committee meets annually to discuss the listing of rare species under the Wildlife Conservation Act. Members of the public can nominate species of plants and animals to be listed. The Minister for the Environment usually takes the TSSC’s recommendations into account during the listing process.

If you would like to make a nomination click here for more information.

Prosecution for a breach under the Wildlife Conservation Act can only be brought by the Department of Environment and Conservation.

Members of the public can, however, report a person to the Department of Environment and Conservation for illegally taking flora or fauna contrary to the Wildlife Conservation Act. They can also report an offender to the Environmental Protection Authority for illegally clearing land, dumping waste or spilling chemicals.

• the Wildlife Conservation Act 1950 (WA)
• the Conservation and Land Management Act 1984 (WA)
• the Fish Resources Management Act 1994 (WA)
• the Environmental Protection Act 1986 (WA)
• the Land Administration Act 1997 (WA)
• the Bushfires Act 1954 (WA)

• Environment Defenders Office - Western Australia

• Commonwealth threatened species law
• International biodiversity law