Biodiversity Bill 2025 – Proposed Native Vegetation & Wildlife Reforms

After only 4 weeks, public consultation on the draft Biodiversity Bill 2025 recently closed. The draft Bill proposes the repeal of the Native Vegetation Act 1991 (SA) (NV Act) and to absorb those provisions of the National Parks and Wildlife Act 1972 (SA) relating to wildlife.

In the short time available to it, the Local Government Association has made a submission to the Department of Environment and Water (assisted by our advice) on key aspects of the Bill which will impact the local government sector. The LGA’s submission is available here.

Significant issues, as identified in the LGA’s submission, are summarised below.

Application of plant clearance controls

The draft Bill would expand the spatial application of clearance controls, and the class of species to which they apply.

Whereas the NV Act controls the clearance of plant species indigenous to South Australia, the draft Bill would expand controls to plant species indigenous to Australia broadly, including fungi and algae.

Further, the application of clearance controls would extend to ‘public lands’ (including ‘community land’) within metropolitan Adelaide. That is particularly significant in view of the fact that exemptions from clearance control for native plants which were intentionally sown do not extend to plants growing or situated on ‘public land’. As noted by the LGA, while some councils may welcome this change, it may present an impost for others, especially where, for example, removal of native plants is required to facilitate a development or project. Management of parks, reserves and open spaces may also be impacted.

These aspects of the Bill may to a limited degree be modified by (as yet unseen) regulations. The regulations may include or exclude specific classes of plant from the definition of “native plant”. They may also exclude particular areas form the regulated clearance area, but not ‘public lands’ outside of the regulated clearance area i.e. within metropolitan Adelaide.

General Duty

The Bill proposes a ‘general duty’ requiring that:

[a]n entity must not undertake an activity that harms or has the potential to harm biodiversity unless the entity takes all reasonable and practicable measures to prevent or minimise any resulting harm.

Councils may be familiar with the concept of a ‘general duty’ from the Environment Protection Act 1993 and Landscape South Australia Act 2019.

A breach of the ‘general duty’ is not an offence in its own right, but may be a trigger for further compliance action such as the issuing of a compliance order or reparation order, or the commencement of court proceedings. The general duty should cause councils to more acutely consider the impact of proposed activities on biodiversity.

Funds

A new ‘Biodiversity Administration Fund’ would be established under the Bill to support the operation and administration of the Bill. To complement the creation of the Fund, the Bill proposes new powers to levy from applicants fees for administrative purposes. As noted by the LGA, this has the potential to directly and disproportionately impact regional councils.

Cohesion with the Planning System

The Expert Panel for the Planning System Implementation Review recommended that the state government should ‘… review and refine the intersection between the PDI Act and NV Act to remove confusion within the community and development sector, to ensure native vegetation is retained’.

Although some apparent effort has been made through the draft Bill to align exemptions in the Bill with those which exist under the PDI Act, inconsistency which is likely to lead to confusion remains.

For example, Item 4 in Schedule 2 of the Bill provides an exemption for clearance of plants growing or situated within 3m of an ‘existing prescribed building’. That distance aligns with the amended regulated tree exemption within the Planning, Development and Infrastructure (General) Regulations 2017 (PDI Regulations). However, differences remain. For example, whilst the draft Bill exemption applies to all native plants, the PDI Regulations regulated tree exemption does not apply to certain species such as Willow Myrtles or trees within the genera Angophora, Corymbia or Eucalyptus. Further, the PDI Act exemption applies to swimming pools whereas the draft Bill exemption does not. This has the potential to create confusion in the community.

Similarly, rules for clearance around buildings in bushfire zones, and clearance in an emergency situation, are also not fully aligned.

Roadside plant management

We understand that this is an issue of critical importance for the local government sector.

Schedule 2 clause 8 of the Bill exempts the clearance of native plants from road reserves by or on behalf of a council for the purposes of ensuring the safety of road users or controlling pests on the land. However, the clearance must be undertaken in accordance with guidelines adopted by the Biodiversity Council (which have not yet been prepared) and, where required by the guidelines, a native plant management plan approved by the Native Plants Clearance Assessment Committee (the body created under the Bill for the assessment of clearance applications).

The LGA in its submission has strongly advocated for guidelines to be prepared by a working group made up of a range of suitably qualified professionals with operational knowledge in road safety/construction, biodiversity conservation and other skills. Further, guidelines must provide a clear and simple approach to roadside plant management, which prioritises the safety of road users. Additionally, the LGA submitted that the preparation of native plant management plans is likely to come at a significant cost to the sector, and that compliance with the Biodiversity Council approved guidelines alone should be sufficient to exempt roadside clearance from controls.

Native Animals

The draft Bill does not adopt the schedule of unprotected species, which exists under the National Parks and Wildlife Act 1972, and excludes from the definition of ‘protected animal’ prescribed species including dingoes and little corellas.

Although exemptions have been included for the taking of dingoes in particular circumstances, including where the dingo is likely to cause damage to stock, no similar exemptions have been included for other species in respect of crops.

The Bill contemplates that further exemptions may be provided by regulations, but to our knowledge none have been prepared to date and are not available for comment.

Conclusion

Although the formal consultation period ended on 18 February 2025, the LGA has urged the State government to consult further with local councils. The LGA also welcomes further feedback about on-the-ground experience of councils in terms of their interactions with the existing regulatory schemes and structures (whether positive or negative).

Councils generally are encouraged to continue to consider the proposed impact of the draft Bill, which has not yet been introduced to Parliament.

For more specific information on any of the material contained in this article please contact Peter Psaltis on +61 8 8210 1297 or ppsaltis@normans.com.au or Stephan Koefer on +61 8 8210 1368 or skoefer@normans.com.au.