South Australia’s draft Biodiversity Bill: What developers need to know

South Australia is on the verge of a major environmental law reform with the introduction of the draft Biodiversity Bill 2025 (SA) (Bill) – a comprehensive piece of legislation aiming to centralise and modernise the protection of native flora, fauna, and ecosystems across the state.

Currently, biodiversity is regulated through a patchwork of laws. The new Bill consolidates and replaces several key Acts, principally the Native Vegetation Act 1991 (SA) (NV Act) and parts of the National Parks and Wildlife Act 1972 (SA) (NPW Act). It aims to create a unified approach to biodiversity conservation, improve enforcement mechanisms, and embed First Nations knowledge into environmental management.

Relevantly, “biodiversity” is defined quite broadly in the Bill, and includes organisms and micro-organisms, which is an expansion of existing obligations relating to native vegetation and wildlife.

The Bill will be particularly significant for developers, local councils, and infrastructure providers who interact with or impact native vegetation and wildlife.

The Bill introduces a new general duty requiring that an entity must not undertake an activity unless it takes reasonable and practicable measures to prevent or minimise harm to biodiversity. This applies broadly across industries and activities, including development.

Although failure to comply won’t constitute a criminal offence, it can trigger compliance, reparation or other regulatory orders.

When determining what constitutes "reasonable and practicable measures”, the following must be considered:

• the likelihood of harm arising, including cumulative impacts;
• the foreseeability of the harm and whether the entity knew or ought to have known it could occur; and
• the availability, suitability and cost of measures to prevent or reduce harm.

These factors signal a shift towards a more proactive, risk-based approach to biodiversity protection – developers will need to carefully assess and document how these risks are being managed on every project.

A Biodiversity Council, Native Plants Clearance Assessment Committee, and other advisory bodies (including First Nations and Scientific Committee) will oversee regulation and policy. Developers and resource sectors are notably excluded from formal consultation roles.

A strategic plan to be developed by the Minister (with input from the Council and Committees referred to above) that will shape decision-making, including restoration targets, biodiversity indicators, and conservation priorities.

The Bill broadens the scope of current environmental protections:

• Native plants now include all flora, indigenous to any part of Australia – not just South Australia – bringing a wider range of vegetation under regulation and expanding the circumstances in which clearance approvals will need to be obtained. The definition now also covers intentionally planted native species that are more than 20 years old.
• Regulated areas: the Bill expands the areas in which unauthorised clearance is prohibited to capture not just “regulated clearance areas” (aligned with the areas identified in the NV Act), but notably now all “public land” within South Australia.
• Native animals are now all protected from interference by default. Unlike the current regime under the NPW Act, there is no longer a list of "unprotected animals”. Any exemptions will need to be specifically made by regulation.
• Critical habitat areas deemed essential for the survival of threatened species or ecological communities can be declared by the Minister for Climate, Environment and Water. Where a plant is part of a critical habitat, the Native Plants Clearance Assessment Committee must not approve clearance unless satisfied that the activity will not cause or contribute to an increase in the risk of extinction or collapse of the threatened species or ecological community.

Civil penalties, enforceable undertakings, and even sterilising orders (which can prevent development on a site for up to 10 years after illegal clearance) signal a tougher compliance environment.

Assess whether your development activities have the potential to harm biodiversity or whether the development site is home to protected native plants or animals or critical habitat. You will also need to consider whether the clearance of native plants from adjacent public land is required to allow your development to proceed.

For infrastructure developments and residential subdivisions native plant clearance approval may be required from the Native Plants Clearance Assessment Committee under the new biodiversity regime and also as part of any development approval under the Planning, Development and Infrastructure Act 2016 (SA).

Your projects should aim to avoid, minimise, rehabilitate or offset biodiversity impacts. Evidence of the mitigation hierarchy having been thoroughly considered will be required as part of an application for clearance approval.

Ecological assessments to identify controls to mitigate the risk of harming biodiversity (or indeed native plants or animals) and the potential for there to be no specific appeal rights on vegetation clearance decisions could significantly affect project timelines and budgets.

The absence of draft regulations and a draft State Biodiversity Plan, both of which are critical to understanding the details of how the Bill would be implemented and compliance monitored in practice, gives rise to significant uncertainty for developers and business generally in South Australia.

Compounding this uncertainty is the absence of any transitional provisions. Developers with projects in planning or currently seeking approval should be actively assessing how these changes might affect their proposals if the Bill passes in its current form.

The Bill is expected to be introduced to Parliament later this year, following earlier public consultation. Developers should start preparing now, engage legal and ecological experts early, and stay alert for further developments.

This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.