Biodiversity Conservation (Exemptions) Order 2018

Existing authority (clause 3(1)). This is any licence, permit, approval, consent, registration or other authority issued under a written law or a State agreement that was in force immediately before section 48 of the Act came into operation and remains in force when the activity modifying a threatened ecological community is carried out. The concept captures a random variety of pre-existing approvals - not just those under natural resource management laws but possibly also mining, pastoral, or infrastructure approvals - and gives them continued effect for the specific purpose of modifying a threatened ecological community. No new grant of authority is required; the exemption is automatic if the three conditions (authority in force before s 48 came into operation, authority still in force, activity carried out in accordance with conditions) are met. Section 48 came into operation on 1 January 2019 (by proclamation). Hence activities authorised by approvals that existed before that date can continue without contravening the Act, provided they also comply with any clearing permit requirements under the Environmental Protection Act 1986.

Dingo (clause 4(1)). The Order defines dingo as an animal belonging to the species Canis familiaris dingo (also referred to as Canis lupus dingo). This tracks the taxonomic ambiguity around the dingo’s classification. The definition matters because it determines which animals are covered by the exemptions: wild dogs or hybrids that do not meet the species description are not exempted under this Order (though they might be exempt under other provisions or regulations). The exemption for possession is unconditional, which means that any person can possess a dingo without a licence or permit under section 152(1) of the Act. But taking or disturbing a dingo is exempt only if done in accordance with a biosecurity requirement under the Biosecurity and Agriculture Management Act 2007. That statute governs pest management, so the exemption effectively allows pest control officers or landholders acting under a pest notice to take or disturb dingoes as part of a control program.

Biosecurity requirement (clause 4(1)). This is defined as either a pest exclusion notice under section 27(1) of the Biosecurity and Agriculture Management Act 2007, a requirement to take prescribed control measures under section 30(3), or a pest control notice under section 31(1). These are various administrative instruments that can direct a person to exclude, control, or eradicate declared pests. The exemption only covers actions taken in accordance with such instruments - purely voluntary dingo control is not exempt.

Flora cultivar (clause 5(1)). A flora cultivar must be produced by selective breeding (through hybridisation or form selection) and must be morphologically distinguishable from its parent species in the wild. The key is the morphological distinction: if the plant looks like its wild ancestor, it is not a cultivar for the purposes of this Order even if it was bred in cultivation. This definition avoids excluding artificially selected varieties that are essentially identical to wild populations from the Act’s protections. The exemption covers supply (s 176(1) - supplying flora), dealing (s 177(1)), and processing (s 178(2)). This is commercially important for nurseries and horticulturalists who propagate and sell cultivars of native species.

Bush fire mitigation activity and bush fire suppression activity (clause 7(1)). These are defined by exhaustive lists of activities authorised under other Western Australian fire management laws. Bush fire mitigation activity includes various types of burning under permits or directions under the Bush Fires Act 1954, things done to comply with bush fire notices, clearing by local governments, and activities under the Bush Fire Risk Treatment Standards 2020. Bush fire suppression activity refers to actions taken under specific provisions of the Bush Fires Act 1954 and the Fire Brigades Act 1942 when fighting fires. The definitions are statutory referencing rather than functional descriptions - an activity is exempt only if it falls within one of the listed paragraphs.

Fire hazard reduction burning (clause 7(1)). This means burning or partial burning of vegetation to reduce the risk of injury or damage to persons or property from an uncontrolled fire. This definition is central to the six-year limitation in clause 7(3): the exemption for certain listed bushfire mitigation activities does not apply to fire hazard reduction burning in an area if such burning has occurred in that area within the past six years. The limitation does not apply to burning done under specific provisions: paragraphs (c) (burning under s 22(2) Bush Fires Act - emergency burning by an authorised officer), (e) (things done to comply with a bush fire notice), (f) (things pursuant to a local government direction under s 33(4)), and (g) (clearing by local government under s 36(b)). The six-year rule thus encourages rotation of burn areas but restricts repeated burning in the same patch within that period, reflecting ecological concerns about the cumulative impact of too frequent fire.

Flora (clause 6(1)). For the purposes of the dealing in flora exemption, flora does not include specifically controlled sandalwood as defined in regulation 3 of the Biodiversity Conservation Regulations 2018. This carves out an important commercial commodity from the otherwise broad exemption. Sandalwood remains subject to the full prohibition in section 177(1) and requires its own licensing regime.

The Order primarily affects persons who would otherwise be caught by prohibitions in the Biodiversity Conservation Act 2016, but who can now rely on the exemptions to conduct activities without liability. The specific groups differ by clause.

Clause 3 (existing authorities) directly affects anyone holding pre-2019 approvals that involve modifying a threatened ecological community. This includes mining companies with State agreements, pastoral lessees, infrastructure operators (e.g., pipeline or road authorities), and local governments with permitted activities on land containing a listed threatened ecological community. It also affects proponents who have obtained clearing permits under the Environmental Protection Act 1986 for such activities, as the exemption requires that any such permit has been obtained. The exemption is not transferable to new approvals: it only covers authorities that existed before section 48 came into operation. New applicants cannot rely on clause 3; they must seek separate authorisation under Part 3 of the Act.

Clause 4 (dingoes) affects land managers, farmers, local government pest control officers, and staff of the Department of Primary Industries and Regional Development who take or disturb dingoes as part of declared pest management. It also affects pet owners, wildlife carers, and any person who possesses a dingo - the possession exemption is unconditional. However, persons who take dingoes outside a biosecurity requirement (e.g., recreational hunting of dingoes) cannot rely on this exemption. The exemption is narrow in its take/disturb limb; it does not cover other interactions such as buying, selling, or transporting dingoes unless separately authorised.

Clause 5 (flora cultivars) affects the horticultural industry: nurseries, garden centres, plant breeders, florists, and landscape suppliers who deal in cultivars of native species. The morphological distinction test means that only those cultivars that are visually distinct from wild-type plants are exempt. This imposes a compliance burden on suppliers to determine whether a particular variety meets the test - for many common cultivars (e.g., grafted forms of Grevillea, Callistemon, or Eucalyptus) this will be straightforward, but for subtle selected forms it may be less clear.

Clause 6 (dealing in flora) affects wholesale and retail sellers of native flora. The exemption covers any person who purchases flora from a licensed supplier or from someone with lawful authority to supply. This is the backbone of the legal flora trade: without this exemption, every downstream sale would require a separate licence under s 177. However, the exemption is conditional on record-keeping. Sellers must make and keep records for two years including description, quantity, date of purchase, and seller details. The record must be kept at the place of dealing and produced to a wildlife officer on request. The alternative exemption for potted plants or direct retail sales removes the record-keeping condition, which reduces compliance costs for garden centres but still requires that the seller has lawful authority to supply. The exclusion of specifically controlled sandalwood means that sandalwood dealers must obtain separate authorisation.

Clause 7 (bushfire activities) affects a very broad group: government fire agencies, local government staff, private landholders conducting hazard reduction burning, volunteer bush fire brigades, and persons fighting wildfires. The exemption covers both planned mitigation and emergency suppression. However, the six-year limitation on repeated fire hazard reduction burning means that landholders who burn the same area more frequently than every six years cannot rely on the exemption for those repeat burns - they would need separate approvals under the Act or risk prosecution. Also, the exemption does not cover harvesting of fauna or threatened flora during bushfire activities; if personnel capture or harvest animals or collect flora for any purpose (e.g., salvage or commercial exploitation) during fire operations, that activity is not exempt.

The Order confers rights to carry out activities without contravening the Act. It does not impose many positive duties - the main duties are conditions attached to the exemptions.

Rights. Any person who meets the conditions in clause 4(2) has a right to take a dingo in accordance with a biosecurity requirement. Any person has an unconditional right to possess a dingo (clause 4(3)). Any person has a right to supply, deal in, or process a flora cultivar without liability under the Act (clause 5). Any person has a right to deal in flora purchased from a licensed supplier or someone with lawful authority, subject to record-keeping (clause 6). Any person has a right to carry out specified bushfire mitigation or suppression activities without liability for modifying threatened ecological communities, taking fauna or flora, or disturbing fauna (clause 7). Persons with existing authorities that were in force before section 48 came into operation have a right to continue modifying threatened ecological communities in accordance with those authorities (clause 3).

Duties and conditions. Clause 6(3) imposes a clear record-keeping duty on anyone dealing in flora under the exemption: they must make a record containing description, quantity, date of purchase, and seller name and address; keep that record for at least two years after the purchase; keep it at the place where they deal in flora; and make it available to a wildlife officer on request. Failure to comply with any of these conditions means the exemption is unavailable, and the person may be liable under section 177(1) of the Act. This is a strict condition: no mens rea element is stated, and the burden of proving compliance would be on the person relying on the exemption.

Clause 3(2)(b) requires that the activity is carried out in accordance with any conditions to which the existing authority is subject. If the existing authority has conditions (e.g., a mining approval with rehabilitation conditions), the activity must comply with them or the exemption is lost. Clause 3(2)(c) requires that any clearing permit required under the Environmental Protection Act 1986 has been obtained - this is not a condition that the person can unilaterally satisfy; it depends on the permit regime.

Clause 7(3) imposes a temporal limitation on certain types of fire hazard reduction burning: the exemption for the listed activities (paragraphs (a), (b), (d), (h), (i), (j) of the definition of bush fire mitigation activity) does not apply if burning of vegetation in the area has occurred within the past six years. That creates an implicit duty on the person carrying out the burning to check whether the same area has been burned within that period. The limitation does not apply to certain categories of burning (paragraphs (c), (e), (f), (g)), so those activities can be conducted without the six-year check.

No general duty to seek permission. The exemptions are self-executing: persons do not need to apply to the Minister or the Department for an exemption. They simply need to satisfy themselves that the activity falls within the defined scope and that any conditions are met. This reduces administrative burden compared to applying for a licence, but it also shifts the risk of non-compliance onto the person: if an activity turns out not to meet the exemption criteria, the person may face prosecution without having had any prior confirmation.

The Order itself does not create any penalties. It is an exemption from liability. Enforcement is indirect: if a person carries out an activity that they mistakenly believe is exempt but does not in fact meet the conditions, they are subject to the penalties in the Biodiversity Conservation Act 2016 for the underlying offence. Those penalties are substantial for the Act - for instance, sections 48, 149, 150, 152, 153, 173, 176, 177, and 178 each carry maximum penalties that can apply to individuals and corporations. The Order does not lower those maximums; it simply removes liability for compliant activities.

Burden of proof. Because exemption provisions are defensive in nature, the legal burden is likely to fall on the person seeking to rely on the exemption to prove the facts that bring the activity within it (on the balance of probabilities, as a matter of standard criminal procedure where a statutory defence or exemption is raised). This means that in any prosecution, the person would need to show, for example, that an existing authority was in force as defined, that a dingo was taken in accordance with a biosecurity requirement, that a flora cultivar is morphologically distinguishable, that records were kept and maintained, or that bushfire activities fell within the listed categories and did not breach the six-year rule.

Wildlife officers. Clause 6(3)(c) gives wildlife officers the right to inspect records maintained under the dealing in flora exemption. A person who fails to make a record available on request may lose the benefit of the exemption and could be prosecuted for dealing in flora without a licence. There is no specific penalty for failing to produce records under this Order - the consequence is that the exemption is not available, so the underlying offence under s 177 of the Act applies. Wildlife officers also have general powers of entry, inspection, and seizure under Part 16 of the Act, which apply regardless of the exemption.

Enforcement priorities. The Order does not allocate enforcement resources. In practice, the Department of Biodiversity, Conservation and Attractions (DBCA) is responsible for administering the Act. The exemptions reduce compliance burdens for many routine activities, which may free enforcement resources for higher-risk conduct. However, the conditions (especially the record-keeping and six-year rule) create audit points that officers can use to test whether the exemption is being properly relied upon.

No private right of action. The Order does not create a private right to sue for breaches. Enforcement is solely by the State (and possibly through public interest environmental litigation under other statutes, but not under the Order itself).

The Order is explicitly structured around other Western Australian statutes, creating a complex web of cross-references.

Environmental Protection Act 1986. Clause 3(2)(c) requires that any clearing permit required under the Environmental Protection Act 1986 in respect of the activity has been obtained. This means that the exemption under the Biodiversity Conservation Act does not override the clearing permit regime. A person modifying a threatened ecological community must still comply with the Environmental Protection Act if clearing of native vegetation is involved. If a clearing permit is refused, the exemption is unavailable even if the existing authority would otherwise cover the activity.

Biosecurity and Agriculture Management Act 2007. Clause 4 ties the taking and disturbance of dingoes to biosecurity requirements under this Act. A person cannot rely on the exemption unless there is a current pest exclusion notice, control measure requirement, or pest control notice in place. The Biosecurity and Agriculture Management Act also governs declared pest categories; dingoes are declared pests in certain parts of the State under that Act, so the exemption effectively aligns biodiversity protection with pest management.

Bush Fires Act 1954, Fire Brigades Act 1942, Fire and Emergency Services Act 1998. Clause 7 is essentially a schedule of provisions from these Acts. The exemption only applies if the activity is authorised by or done under those specific sections. The Bush Fires Act governs permits for burning, hazard reduction notices, and emergency firefighting powers. The Fire Brigades Act 1942 (now largely superseded but still referenced) deals with fire brigade functions. The Fire and Emergency Services Act 1998 defines the FES Commissioner and related functions for Crown land management.

Bush Fire Risk Treatment Standards 2020. Clause 7(1) definition of bush fire mitigation activity includes things done under clause 6 of these Standards. These Standards are made under the Bush Fires Act 1954 and set requirements for fuel load reduction. The exemption covers compliance with those Standards, but only if the activity is within the six-year limitation (for certain types).

Environmental Protection (Clearing of Native Vegetation) Regulations 2004. Two items from regulation 5(1) Table are included in the definition of bush fire mitigation activity: items 3 and 15, which relate to clearing for firebreaks and fire management. This replicates the existing exemption from the clearing regulations under the Environmental Protection Act and extends it to the Biodiversity Conservation Act prohibitions.

Biodiversity Conservation Regulations 2018. The exclusion of specifically controlled sandalwood from the flora dealing exemption is defined by reference to regulation 3 of those Regulations. The Regulations set out the controlled species, including sandalwood, and impose additional licensing requirements. The Order does not provide any exemption for sandalwood dealings, so the full regulatory regime applies.

State agreements. Clause 3(1)(a) includes existing authorities issued under a State agreement. State agreements are contracts between the State of Western Australia and proponents (typically for major resource projects) that are ratified by an Act. This means that approvals under those agreements (e.g., for mining operations) can be captured as existing authorities, provided they meet the temporal requirements.

Interaction with the Act's general exemptions. The Act itself (section 283) empowers the Minister to make orders exempting persons or activities from specified provisions. The Order is one such exercise of that power. The Order does not duplicate exemptions that may appear in the regulations (e.g., exemptions for scientific purposes or traditional use) unless specifically stated. A person who does not meet the Order's conditions may still be able to rely on other exemptions under the Act or regulations, such as licences, permits, or other approvals.

The Order was originally made on 21 December 2018, published in the Gazette, and operative from 22 December 2018 (clauses 1 and 2 effective from publication date). The original version contained clauses 1, 2, 3, 5, 6, and a previous version of clause 7. The first amendment came via the Biodiversity Conservation (Exemptions) Amendment Order 2019, published on 5 November 2019, operative from 6 November 2019. That amendment inserted the current clause 4 (dingo exemptions). The second amendment came via the Biodiversity Conservation (Exemptions) Amendment Order 2021 (SL 2021/175), published on 15 October 2021, operative from 16 October 2021. That amendment substituted the entire clause 7 (bushfire mitigation and suppression activities) with the current broader list, including the six-year limitation and the expanded definitions. The 2021 amendment was significant: it added references to the Bush Fire Risk Treatment Standards 2020, the FES Commissioner, and the clearing regulations, and it refined the limitation to fire hazard reduction burning. The compilation table shows these three versions. No further amendments have occurred since 2021. The Order is a static piece of subordinate legislation; it does not contain sunset provisions or require periodic review, though the Act under which it is made may be amended.

The source text does not refer to any litigation history. There are no noted court cases, tribunal decisions, or judicial review applications related to the Order in the compiled text. This is not surprising given the Order's narrow scope and the fact that it is relatively recent (2018) and has been amended only twice. The lack of litigation does not mean there have been no disputes; it may reflect that the exemptions are sufficiently clear to avoid challenge, or that enforcement actions under the Act have not yet tested the boundaries of the exemptions. Potential areas of future litigation could include disputes over whether a particular plant qualifies as a flora cultivar (i.e., whether it is morphologically distinguishable from its wild parent), whether a bushfire activity fell within the defined categories (especially if the activity is not expressly listed), or whether an existing authority was truly in force before section 48 came into operation. The six-year limitation on fire hazard reduction burning could also generate interpretive disputes about what constitutes the same area and what counts as prior burning. Legal challenges could arise under the Administrative Law (Judicial Review) Act or common law for decisions taken based on the Order (e.g., if a wildlife officer disputes a person's reliance on the exemption and initiates prosecution). No reported cases exist at the time of this writing.

Six-year trap for hazard reduction burning (clause 7(3)). The most easily overlooked condition is that the exemption for many types of fire hazard reduction burning does not apply if the same area has been burned within the past six years. This applies even if the person has a valid permit under the Bush Fires Act. Landholders who routinely burn the same paddock every few years for fuel reduction may find the exemption unavailable, exposing them to prosecution under the Act. The six years run from the date of the prior burning, not from the notification or permit application. The limitation may be difficult to prove: a landholder may not have records of when the last burn occurred. The burden of showing the exemption applies rests on the person. Note that the limitation does not apply to certain categories of mitigation (burning under s 22(2) Bush Fires Act - emergency burning by an authorised officer; things done to comply with a bush fire notice; local government direction under s 33(4); and clearing by local government under s 36(b)). But for the common permit-based burning, the six-year rule is a real trap.

Flora cultivar morphological distinction must be actual, not claimed. Clause 5 requires that a cultivar is in a form that is morphologically distinguishable from its parent species growing in the wild. A supplier cannot simply label something a cultivar; it must be objectively distinct. This may be contentious for subtle selections, such as a dwarf form of a species where the only difference is size, or a colour variant that occurs naturally in wild populations. If the morphological difference is not genuine, the plant is not a cultivar and the exemption does not apply. Nurseries that sell species that are not clearly distinct risk prosecution if they rely on the exemption.

Dingo possession is unconditional, but taking and disturbance are narrow. Clause 4(3) gives an unconditional right to possess a dingo. But clause 4(2) and (4) require that taking or disturbance be in accordance with a biosecurity requirement. A person who takes a dingo without such a requirement (e.g., a farmer who shoots a dingo not under any pest notice but for personal protection) is not exempt. That person could be prosecuted under section 149(1) for taking protected fauna. The unconditional possession exemption also means that a person can legally possess a dingo caught by someone else under a biosecurity requirement, but the taker must have had the requirement.

Existing authorities must be in force at two points in time. Clause 3(1)(b) requires the authority to be in force immediately before the day section 48 of the Act came into operation. Clause 3(1)(c) also requires it to be in force on the day the activity is carried out. If an authority expired after section 48 commenced and was not renewed or extended, it cannot be relied upon for activities after expiry. This is a grandfathering provision, not a perpetual exemption.

Specific sandalwood excluded from dealing exemption. A person dealing in specifically controlled sandalwood (as defined in the regulations) cannot rely on clause 6. They must obtain separate authorisation under the Act. The exclusion is absolute, not conditional.

Record-keeping for dealing in flora is strict and site-specific. Clause 6(3) requires that records be kept at the place where the person deals in flora. For a business with multiple locations, records for each site must be kept at that site (or be readily producible if inspected). The two-year retention period runs from the date of purchase, not from the end of the financial year or from sale. The record must include the name and address of the seller, not just a supplier code.

No exemption for harvesting during bushfire activities. Clause 7(4) and (5) make clear that the taking exemptions do not cover harvesting or capturing fauna or harvesting threatened flora. If fire crews, for example, decide to collect endangered plants for propagation or capture wildlife for relocation during a fire, those specific actions are not exempt. They would require separate authorisation. This may be an issue for emergency salvage operations.

Burden on the user. The Order places the burden on the person to know and comply with the conditions. There is no notification requirement, no pre-approval, and no duty on the government to advise that an exemption applies. A mistake about the scope of the exemption can lead to criminal liability.

For a person wishing to rely on any of the exemptions, the first step is to identify which clause potentially applies. For each applicable clause, the person should document the following:

Clause 3 (existing authorities). Identify the specific existing authority, record its date of issue and terms, confirm it was in force immediately before 1 January 2019 (when s 48 commenced), and confirm it remains in force. Obtain a copy of that authority and any conditions. Check whether a clearing permit under the Environmental Protection Act 1986 is required for the activity; if so, obtain it before commencing the activity. Keep a file containing the authority, the clearing permit (if any), and a log of activities carried out in reliance on the exemption. If the authority is subject to conditions, comply with them strictly.

Clause 4 (dingoes). For taking or disturbing a dingo, confirm you are acting in accordance with a biosecurity requirement (pest exclusion notice, prescribed control measure, or pest control notice). Obtain a copy of that requirement and keep it. If you are a pet owner or carer possessing a dingo, you do not need to document anything for the exemption, but you should still be able to prove the animal is a dingo (Canis familiaris dingo) and not a wild dog hybrid if questioned. For taking, note that the exemption does not cover non-compliant taking; if not under a biosecurity requirement, do not take or disturb.

Clause 5 (flora cultivars). For any cultivar you intend to supply, deal in, or process, confirm that the plant is a product of selective breeding (hybridisation or form selection) and that it is morphologically distinguishable from its wild parent species. Obtain a taxonomic description or reference from a reputable source (e.g., horticultural registration records, Royal Horticultural Society lists, or Australian Cultivar Registration Authority). If in doubt, refrain from relying on the exemption and seek a licence or permit under the Act. Keep records of the cultivar name, breeder details, and distinguishing features.

Clause 6 (dealing in flora). For every purchase of flora for resale (other than potted plants sold directly to the public), record: a description of the flora (species, common name, and any identifying marks), the quantity purchased, the date of purchase, and the full name and address of the seller. Keep these records in a log or database at the place where you deal in flora. Retain them for at least two years from the date of purchase. Ensure the records are readily accessible to a wildlife officer on request. If you purchase from a licensed supplier, keep a copy of their licence or written advice of their lawful authority. For sales of living potted plants direct to the public, the record-keeping condition does not apply, but you must still ensure you purchased from a lawful source. For specifically controlled sandalwood, do not rely on this exemption; obtain separate authorisation under the Act and regulations.

Clause 7 (bushfire activities). Before any bushfire mitigation activity, identify which listed category it falls under (e.g., a permit under s 18 of the Bush Fires Act). For fire hazard reduction burning that is of a type listed in clause 7(3)(a),(b),(d),(h),(i),(j), check whether any burning of vegetation in the same area has occurred within the past six years. This may require local knowledge, fire history maps, or consultation with the local fire authority. If a prior burn occurred within six years, do not rely on the exemption for that activity - seek advice or alternative authorisation. For bushfire suppression activities, document that you were responding to an actual fire and acting under one of the listed provisions. If any harvesting of fauna or flora occurs during the activity, ensure separate authorisation is obtained. Keep logs of dates, locations, types of burning, and the statutory basis for the activity.

General compliance practices. Maintain an internal register of exemptions relied upon, with cross-references to supporting documents. Train staff on the conditions, especially the six-year rule and record-keeping. Review the Order periodically for amendments (though none have occurred since 2021). If uncertainty arises, treat the activity as not exempt until confirmed otherwise, and seek legal advice or a formal determination from the Department of Biodiversity, Conservation and Attractions. Relying on an exemption that does not apply is a risk that can lead to prosecution and substantial penalties.