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Illegal native vegetation clearing

Scope and definition

Up until the last couple of decades, land and hence native vegetation clearance was a conventional and legally-condoned practice, largely committed to open up land for agriculture but standard for any private landowner wishing to modify the environment. In Australia, with an historically-sanctioned economic dependence on agriculture, there has been a valuation of the land mostly founded on the profit it can turn and often at the expense of its ecological worth. Agriculture and grazing still account for a great deal of native vegetation clearance occurring today but development of land for other purposes is a significant culprit.

Definitions of clearing and native vegetation differ between the Australian states and territories (some of these are listed in Table 25). Native vegetation clearing, however, generally refers to any act that removes, disfigures or kills vegetation deemed indigenous to the region. Illegal clearance, then, is any such vegetative removal or destruction, or clearance that takes place without due authorisation.

Table 25: Definitions of clearing and native vegetation from selected statutes
Definition of clearing Definition of native vegetation

Native Vegetation Act 2003 (NSW)

Cutting down, felling, thinning, logging, removing, killing, destroying, poisoning, ringbarking, uprooting or burning

Any of the following types of indigenous vegetation

  • trees (including any sapling or shrub, or any scrub);
  • understorey plants;
  • groundcover (being any type of herbaceous vegetation); and
  • plants occurring in a wetland (s 6)

Vegetation Management Act 1999 (Qld)

  • remove, cut down, ringbark, push over, poison or destroy in any way including by burning, flooding or draining; but
  • does not include destroying standing vegetation by stock, or lopping a tree (s 86)

A native tree or plant other than the following

  • grass or non-woody herbage;
  • a plant within a grassland regional ecosystem prescribed under a regulation;
  • a mangrove (s 8)

Native Vegetation Act 1991 (SA)

  • the killing or destruction of native vegetation;
  • the removal of native vegetation;
  • the severing of branches, limbs, stems or trunks of native vegetation;
  • the burning of native vegetation;
  • any other substantial damage to native vegetation (s 3)

Plant or plants of a species indigenous to South Australia including a plant or plants growing in or under waters of the sea (s 3)

Environmental Protection Act 1986 (WA)

  • the killing or destruction of;
  • the removal of;
  • the severing or ringbarking of trunks or stems of; or
  • the doing of any other substantial damage to, some or all of the native vegetation in an area, and includes the draining or flooding of land, the burning of vegetation, the grazing of stock, or any other act or activity, that causes
  • the killing or destruction of;
  • the severing of trunks or stems of; or
  • any other substantial damage to, some or all of the native vegetation in an area; (s 51A)

Indigenous aquatic or terrestrial vegetation and includes dead vegetation unless that dead vegetation is of a class declared by regulation to be excluded from this definition but does not include vegetation in a plantation (s 3)

 

Laws and regulation

With the realisation of the long-term consequences of native vegetation clearance on the integrity of natural landscapes and productivity of the land, came intervention in the form of government regulation whereby permission for clearance was required before it could be carried out. Of particular concern was the rampant nature of broadscale clearing, a long-used method of clearing land for agriculture and responsible for huge vegetation losses in states such as New South Wales and Queensland. Nonetheless, and compared with other environmental protection laws, legislation controlling against native vegetation clearance was not introduced until comparatively recently. Victoria and South Australia were the first to do so, in the late 1980s, with the remaining jurisdictions following suit sometime in the next decade and Tasmania not until 2002 (Bartel 2008b).

Just three jurisdictions (New South Wales, Queensland and South Australia) have enacted legislation dealing explicitly with native vegetation clearance, which works in concert with land management, development and planning and conservation statutes (see Table 26). In Western Australia, the Environmental Protection Act 1986 includes special provisions for the clearance of native vegetation. In Tasmania, clearance is covered in the Forest Practices Act 1985, which was amended in 2002 to prohibit non-commercial clearing of forest for agricultural purposes. In 2003, the Tasmanian Government announced further amendments to strengthen regulations on the clearing of non-forest vegetative communities but these legislative changes have yet to be realised. The remaining jurisdictions incorporated clearing laws within a range of land development and management acts, or statutory provisions (such as the Victorian Planning Provision (clause 52.17) and the NT Planning Scheme). This reflects the treatment of native vegetation clearance as a consideration of planning and development.

Table 26: State and territory native vegetation clearance statutes
Jurisdiction Primary statute(s)

NSW

Native Vegetation Act 2003

Threatened Species Conservation Act 1995

Environmental Planning and Assessment Act 1979 (Local Environmental Plan)

Vic

Victorian Planning Provision (Clause 52.17)

Planning and Environment Act 1987

Flora & Fauna Guarantee Act 1988

Catchment and Land Protection Act 1994

Qld

Vegetation Management Act 1999

Integrated Planning Act 1997

Nature Conservation Act 1992

WA

Environmental Protection Act 1986

SA

Native Vegetation Act 1991

Tas

Forest Practices Act 1985

ACT

Planning and Development Act 2007

Nature Conservation Act 1980

NT

Planning Act

NT Planning Scheme

Pastoral Land Act

Vegetation management is predominantly controlled by the states and territories, either by state government authorities or local councils. At the national level, the EPBC Act guards against illegal native vegetation clearance through the:

  • protection of threatened species and ecological communities (s 18) and declared sites (s 17B); and
  • the prevention of environmentally-damaging behaviour performed on Commonwealth land (s 27A) or because of Commonwealth action (s 28).

Complementing native vegetation laws are overarching frameworks to better manage and promote the better monitoring of native vegetation coverage. Examples of these include the Commonwealth's National Framework for Management and Monitoring of Australia's Native Vegetation (Aust DEH 2001), Queensland's State Policy for Vegetation Management (Qld DNRW 2006) and Victoria's Native Vegetation Framework (Vic DSE 2002).

Part of Victoria's approach to managing native vegetation was to introduce a statewide target of 'no net loss' of native vegetation, followed by a policy of 'net gain'. South Australia has followed a similar pathway, where landowners are expected to secure a significant environment benefit if allowed to clear native vegetation. In Queensland, a 2003 moratorium on broadscale clearing led the government to introduce a bill to parliament in 2004 to phase out all broadscale clearing of remnant vegetation by 31 December 2006. Queensland recently concluded a moratorium addressing the clearance of high-value regrowth in designated regions of northeast Queensland, with new regulations around clearance in place as of October 2009.

The application of native vegetation clearance laws depends on the purpose of development, land tenure arrangements, geographic area covered and the nature of vegetation to be cleared. For example, Queensland's Vegetation Management Act 1999 regulates all clearing of remnant vegetation on freehold land and remnant and some non-remnant vegetation on state leaseholds. In the Northern Territory, clearance on freehold and Crown land is covered in the Planning Act and clearance of pastoral land in the Pastoral Land Act. Laws prescribed in the NT Planning Scheme cover all freehold and Crown land outside of existing towns and 'control plan areas', and all zone land in rural area bordering Katherine, Litchfield and Alice Springs. SA 's native vegetation laws apply to the whole of the state except metropolitan Adelaide. Where rare and endemic species are potentially affected, conservation laws also apply. In the Australian Capital Territory, where all land is leasehold, clearance laws are prescribed in the Planning and Development Act 2007.

Unless a candidate for exemption, clearing is not legal until authorisation is granted in the form of a clearing permit. Permits are generally not required if the area to be cleared is one hectare or less or clearing is needed for day-to-day farm maintenance. Clearing in urban residential and industrial locations is also mostly exempt. Administering authorities are responsible for the allocation of permits, although in Victoria, local councils are the primary outlet and in South Australia, permits must be sought from the Native Vegetation Council. Permit applications must include a description of the type and amount of native vegetation to be cleared, an aerial photo or site plan illustrating where the native vegetation exists, which sections are proposed for removal, methods proposed to minimise the amount that needs to be cleared and actions proposed to offset the clearing that goes ahead. An example of the latter is the Significant Environmental Benefit as legislated in South Australia's Native Vegetation Act 1991 (and associated Regulations) which mandates an environmental gain be achieved in return for a clearance permit.

Longer-term clearance arrangements can be made through property vegetation (management) plans (PVPs), presently available in New South Wales, Victoria and Queensland. These are negotiated agreements between the landholder and an identified authority (eg Catchment Management Authorities in New South Wales and the Department of Sustainability and Environment in Victoria) describing the nature, scale and purpose of authorised clearing regimes on designated land holdings. PVPs are mandatory in New South Wales but voluntary in Victoria. The establishment of a PVP in Victoria benefits the landowner as it extends the agreed clearing and land management regime to a period of 10 years, whereas a conventional clearing permit normally lasts no more than two years.

Some jurisdictions use various incentive and trade schemes to encourage better vegetation management. For example, Victoria offers the following initiatives:

  • Bush tender—here the landowner receives periodic payments (under signed agreement) for land management practices above and beyond those required by legislation.
  • Carbon tender—carbon offset contracts with landholders who revegetate their properties, with the potential of income derived from
  • five year performance-based payments from the Victorian Government; and
  • future carbon trading markets.
  • Bush broker—a native vegetation credit and trading scheme whereby clearance on one landholding (by developers) can be offset on another through the purchase of native vegetation credits (Vic DSE 2008).

New South Wales also offers incentive funding to landowners and Queensland operates a vegetation management offset scheme.

Offences and penalties

There is considerable variation across jurisdictions in the statutory expression of native vegetation clearance offences (see Table 27). In New South Wales, Queensland, Western Australia and South Australia, the offence is described with direct reference to the act of unauthorised clearing and/or clearing in contravention of permit conditions. Penalties for unauthorised clearing in New South Wales are not stated in the relevant statute but instead cross-refer to the penalty scheme for unauthorised planning works prescribed in the Environment Planning and Assessment Act 1979. For clearing in Queensland, the perpetrator may be penalised according to s 60B of the Vegetation Management Act 1999, alongside ss 4.31–4.35A of the Integrated Planning Act 1997 (or any other statute which the clearance breaches). In the Northern Territory and Australian Capital Territory, unauthorised clearing is embedded within offences that relate to development that is undertaken without prescribed approval(s), or for the NT's Pastoral Act, in breach of conditions of the pastoral lease.

Table 27: Maximum penalties for selected vegetation clearance offences
Act and associated selected offences Maximum penalty

Native Vegetation Act 2003 (NSW)

Clearing without approval (s 12)

$1.1m (under s 126 of the Environment Planning and Assessment Act 1979)

Planning and Environment Act 1987 (Vic)

Contravene scheme, permit or agreement (s 126)

$136,104

Catchment and Land Protection Act 1994 (Vic)

Disobey land use condition (s 35)

$6,805

Disobey land management notice (s 41)

$27,221

Vegetation Management Act 1999 (Qld)

Offence against a vegetation clearing provision (s60B)

$2,250 for each hectare in remnant endangered regional ecosystem or declared area

$1,800 for each hectare in remnant of concern regional ecosystem

$1,350 for each hectare in remnant not of concern regional ecosystem

Fail to comply with compliance noticea (s 55)

$124,875

Integrated Planning Act 1997 (Qld)

Various development offencesb (s 4.31–s 4.3.5A)

$124,875

Environmental Protection Act 1986 (WA)

Unlawful clearing of native vegetation (s 51C)

$250,000 (individual)

$500,000 (body corporate)

Contravene clearing permit conditions (s 51J)

$62,500 (individual)

$125,000 (body corporate)

(Clearance causes) serious environmental harm with intentional and criminal negligence (s 50A(1))

$500,000 and/or five years imprisonment (individual)

$1,000,000 (body corporate)

(Clearance causes) serious environmental harm (s 50A(2))

$250,000 and/or three years imprisonment (individual)

$500,000 (body corporate)

(Clearance causes) material environmental harm with intentional and criminal negligence (s 50B(1))

$250,000 and/or three years imprisonment (individual)

$500,000 (body corporate)

(Clearance causes) material environmental harm (s 50B(2)

$125,000 (individual)

$250,000 (body corporate)

Native Vegetation Act 1991 (SA)

Unauthorised clearance (s 26(1))

Sum calculated at prescribed rate for each hectare (or part of) land in relation to which offence committee or $100,000, whichever is greater

Failure to comply or contravene clearance conditions (s 26(2))

As above

Forest Practices Act 1985 (Tas)

Clearing and conversion etc activity without certified forest practice plan (s 17(4))

$100,000

Contravene provisions of certified forest practice plan (s 21)

As above

Planning and Development Act 2007 (ACT)

Develop land without appropriate approval (s 1999)

$200,000 penalty units (individual) $1,250,00 (body corporate)

Nature Conservation Act 1980 (ACT)

Clearing with intent in a reserve causing serious harm (s 77(1))

$200,000 and/or five years imprisonment (individual)

Clearing (negligent) in a reserve causing serious harm (s 77(2))

$150,000 and/or three years imprisonment (individual)

Clearing with intent in a reserve causing material harm (s 78(1))

$100,000 and/or two years imprisonment (individual)

Clearing (negligent) in a reserve causing material harm (s 78(1))

$75,000 and/or one year imprisonment (individual)

Clears in a reserve (s 79)

$10,000

Pastoral Act (NT)

Failure to comply with notice explaining breach of pastoral lease (s 40)

Forfeiture of lease

Failure to comply with conditions of notice (s 40(7))

$10,000b

Planning Act (NT)

Not develop land except in accordance with planning scheme, interim development control order or permit (s 75A)

$22,000 (individual)

$110,000 (body corporate)

a: Served if person is believed to be committing or having committed a vegetation clearance offence

b: Vegetation clearance interpreted as a development offence

Note: Victorian monetary penalty based on penalty unit amount for 2008–09 ($113.42); Monetary Units Act 2004

 

Maximum penalties are similarly diverse. The largest pecuniary penalty is prescribed in the Native Vegetation Act 2003 (NSW); $1.1m if found to have cleared native vegetation without approval. Persons found clearing native vegetation on pastoral leasehold land in the Northern Territory may have their lease forfeited if they fail to provide the Minister with a legitimate reason for contravening conditions of their lease. In Western Australia, where native vegetation clearance laws are embedded within the Environmental Protection Act 1986, offenders can additionally be penalised according to the amount of harm done by the clearance (be it serious or material) and whether the act was intentional.

Fines in Queensland and South Australia are calculated according to the number of hectares of vegetation cleared and in Queensland, the threatened status of the ecosystem the clearance affected. The maximum fine in South Australia is prescribed at no less than $100,000 for either unauthorised clearance or clearance in contravention of permit conditions.

Nature and extent

Generating acceptance of native vegetation clearance regulations has proved to be a challenge (Bartel 2003). The introduction of legislation suddenly blocked a long standing permissible practice without which, agriculturalists argued, effective management of properties and expansion of businesses would be seriously compromised. Moreover, it targeted only those landowners who had not yet cleared some or all of their properties, which may have generated an additional layer of resentment (NSW OAG 2006).

The scale of illegal clearance since the implementation of native vegetation legislation is not well documented. Data collated by the Productivity Commission for their review of native vegetation regulation found that a decline in overall clearance did take place from the early 1980s to the early 2000s in all Australian states and territories (Productivity Commission 2004). It might then be surmised that rates of illegal clearance also declined but the report warned of evidence of continued non-compliance and even cases of pre-emptive clearing in which landowners cleared vegetation as 'insurance against future policy changes' (Productivity Commission: XXVI).

Part of the problem in estimating rates of illegal clearing is the absence of past, reliable data on vegetation changes and critically, which clearance was lawful and which was not. A 2002 audit by the NSW Auditor General could not elicit information on illegal clearance rates as the clearance register maintained by the then NSW Department of Land, Water and Conservation simply did not record this data. Similarly, an audit conducted in Western Australia could not provide a reliable estimate of the rate of illegal clearing occurring in that state (WA OAG 2007). However, the reporting agency to the WA audit disclosed there were a 'large number' of cases otherwise approved for clearing which had land clearance patterns that did not match those specified on permit applications.

A subsequent audit of NSW native vegetation laws in 2006 discovered illegal clearance continued at unsustainable rates. Of the 74,000 hectares of land cleared in New South Wales in 2005, 40 percent (ie 30,000ha) was cleared illegally (ie without prior approval; NSW AOG 2006). Most of the illegal clearance in New South Wales in 2005 took place in the west and northwest of the state on, as yet, uncleared land. However, there was also evidence of illegal clearance of closed and open forest in locations of 'significant conservation value' along the coast and the Great Dividing Range (NSW AOG 2006: 16).

The prohibition of broadscale clearing in Queensland was interpreted as producing a drop in such clearance by as much as 96 percent (McGrath 2008). The most recent land cover change report recorded a 48 percent decrease in clearing between 2006–07 and 2007–08, the lowest rate of clearance recorded since 1988 (Qld DERM 2009). What proportion of this figure illegally-cleared vegetation comprised was not reported.

Published information on reported breaches, the number that end up being investigated and the resulting sanction is limited and only a few agencies report statistics in their annual reports. For the most recent year (2007–08), the Queensland EPA undertook 722 investigations and desktop evaluations regarding clearance permits, with 46 compliance actions delivered (Qld EPA 2008). No data was provided by the SA Department of Water, Land and Biodiversity Conservation for 2007–08, but in 2006–07, there were 157 reports of breaches against native vegetation laws, resulting in the issuance of 12 expiation notices and seven administrative orders, and five convictions recorded (SA DWLBC 2007a). Neither report described what these breaches constituted.

Reporting and detection

What is evident is the great difficulty in detecting clearance activity, both legal and illegal. Monitoring, in the past, generally failed to accurately determine vegetation losses, because of inadequate resources and limited technology. For example, the then NSW Department of Natural Resources stated in the aforementioned 2006 audit that they did not possess any 'accurate' information on the scale of illegal native vegetation clearance, despite being aware of the continuation of illegal activity post implementation of (the now defunct) State Environmental Planning Policy No 46 and the Native Vegetation Conservation Act 1997 (legislative predecessors to the Native Vegetation Act 2003; NSW OAG 2006). Likewise, the WA Department of Conservation described the amount of illegal clearing as 'unknown'. Only in the last few years has the Department been able to identify 'hot spots' of illegal activity (WA OAG 2007).

'Nosy neighbours and chance discovery' have thus served as the likeliest avenues for detecting illegal vegetation clearance (Bartel 2003: 13). Indeed, one prosecuted case in New South Wales followed a chance sighting by an enforcement officer of bulldozers while driving the Gwydir Highway (Bartel 2003). Complaints, however, need to be investigated and staffing numbers and other priorities influence how many do end up being attended to. In Western Australia, actual investigative work was deemed to be 'limited' and focused mostly on those cases that were 'least complex and least important' (WA OAG 2007: 16). Regional staffing issues and a directive to officers to concentrate on applications over complaints, produced this diminished vigilance, alongside a view that more complex investigations could be delayed due to the absence of a statute of limitations. Complaints and incidental observations also rely on observers to know what they are seeing and for the clearance to be obvious. Tree removal is the most visible form of clearance; all successfully prosecuted cases in New South Wales examined in Bartel (2003) dealt with illegal clearance of forest or woodlands.

In recent years, relevant agencies have invested in, or are looking to invest in, satellite surveillance and aerial photography (Bartel 2005). Alongside more traditional survey work, satellite surveillance will improve mapping of existing vegetation and provide a more systematic method of monitoring clearance patterns. Queensland operates the Global Navigation Satellite System (GNSS) from which downloaded data fulfils monitoring obligations and is used to annually update the Statewide Landcare and Trees Study (SLATs; Qld DNRW 2008a). The Change Detection Program in South Australia combines satellite imagery and high resolution aerial photography monitoring, contact with landholders and on-site inspections for clearance activity (SA DWLBC 2007b). Victoria is planning to implement the Native Vegetation Permit Tracking System, a vegetation remote-sensing mapping system, as part of the Net Gain initiative. It will assist the monitoring of native vegetation clearing and associated offset schemes and analyse tree cover change. The latter will be used as part of a compliance auditing system for forest practices and timber production. In 2003, the NSW Government pledged $3.5m to establish a satellite monitoring system in the state (although some parties have claimed the receiving department did not end up using the money for this purpose; The Wilderness Society 2008).

Compliance auditing, while somewhat sporadic and informal in the past, is not to be dispensed with altogether. Where used uniformly, it has detected significant breaches. A concerted program of compliance audits performed in 1999 in the NSW central west, for example, discovered that two-thirds of landowners had either not complied with conditions of clearance approvals or had gone ahead with clearing despite refusal from the authorising agency (NSW OAG 2002).

Sanctioning

Actions taken against offenders found in breach of native vegetation laws are overwhelmingly the least severe options available. Between 2002 and June 2006, 523 compliance actions emanated from investigations of illegal clearance in New South Wales. In increasing order of severity, 69 percent (n=361) took the form of warning letters, 11 percent (n=60) remediation agreements, 13 percent (n=69) remediation notices, four percent (n=21) stop work orders and two percent (n=12) prosecutions (NSW OAG 2006).

A total of 29 prosecutions were pursued in New South Wales between 1998 and 2005, less than five percent of detected breaches in that period (Bartel 2003; NSW OAG 2006). Eighteen were successful, six unsuccessful (ie contested and acquitted) and five were withdrawn. A similar trend was observed in Western Australia, where 10 successful or in-preparation prosecutions emanated from the 550 complaints registered between July 2005 and July 2007 (WA OAG 2007). Half of these complaints were unresolved as at July 2007, 34 percent having had been lodged over a year before. These statistics compare with the 30 to 50 prosecutions undertaken in Queensland, of which 90 percent were successful (NSW OAG 2006).

Some of the difference in prosecution rates relates to the ease (of lack thereof) with which cases for prosecution can be developed. One of the findings from the 2002 NSW audit was the difficulty in which cases could be prosecuted under the previous Native Vegetation Conservation Act 1997 (NSW OAG 2002). Specifically, were the 'broadly worded' list of exemptions (which allowed cases of illegal clearing to be presented (and accepted) as exempt from regulation) and ambiguous guidelines as to who was ultimately responsible for incidents of illegal clearing. The enactment of the Native Vegetation Act 2003 consequently tightened the list of exemptions and now identifies the occupier of the land as responsible for any clearing occurring on their land, unless evidence suggests otherwise. Other deficiencies noted in the prosecution process were the adequacy of the information gathered and the preparation and presentation of that information in meeting evidentiary requirements.

The maximum monetary penalty for illegal native vegetation clearance ranges from $1.1m in New South Wales (Native Vegetation Act 2003) and $250,000 (for individuals) in Western Australia, to around $100,000 or less in other jurisdictions. But for the most part, actual penalties given are low. For example, monetary penalties imposed in nine cases prosecuted in the mid- to late-1990s ranged from $2,500 (plus costs) to $35,000 (total) for bulldozing of 1,200 ha. This averaged just $37 a hectare (Bartel 2008a).

Bartel (2008a, 2003) and Curran (2000), among others, have questioned the deterrence value of these fines, which promote little incentive to comply. However, Bartel (2008a) has foreseen a possible increase in fines for future acts of illegal native vegetation clearance. A case heard in 2007, where a landowner was fined $20,000 for the clearance of 30.5ha (Director General of Environment and Climate Change v Taylor [2007] NSWLEC 530), was interpreted by Bartel as potential evidence for a 'transition phase (in sentencing) from status quo to new horizon' as well as final recognition for a moral basis in dealing with illegal clearance (Bartel 2008a: 530). Certainly, recent cases heard in the NSW Land and Environment Court have elicited substantially higher fines. These include:

  • the Director General of Environment and Climate Change v Wilton [2008] NSWLEC 297 (31 October 2008)—$40,000 for clearing 32ha;
  • Director General of Environment and Climate Change v Rae [2009] NSWLEC 137 (18 August 2009)—$160,000 for clearing 215ha; and
  • Director General of Environment and Climate Change v Hudson [2009] NSWLEC 4 (11 February 2009)—$400,000 for clearing 486ha and causing serious environmental harm.

Another recent, high-profile case considered the clearance of 750ha of vegetation in the Gwydir wetlands, to which the guilty party received the largest fine for clearance recorded. Prosecuted under s 16(1) of the EPBC Act 1999 (Cth), the total fine amounted to $450,000 (NSW DECC 2009b).

Alongside, or in place of fines, is the option for orders, or to enter into negotiated environmental agreements or outcomes. These orders and agreements effectively refer to directions to revegetate or remediate cleared land. Remediation work may include the establishment and registration of wildlife or 'flood runner' corridors, or wildlife refuges. Alternatively, land ownership may be transferred to offset the monetary value of the land illegally cleared. Following discovery of illegal clearance in Queensland's Central Eastern Rainforest Reserve, for example, the Commonwealth negotiated a property transfer to the Crown of land worth more than $400,000 (Aust DEH 2006). This land was to be incorporated into a World Heritage Area and to compensate for the already damaged land.

Summary

Of all the environmental laws recognised in Australia, arguably the most difficult to generate widespread acceptance for and compliance with are those governing native vegetation clearance. A number of related factors have produced this impasse. Rates of compliance are likelier to be less for the most recently introduced environmental laws compared with environmental laws that have been in place longer and hence have had more time to be accepted. Second, it considers a 'resource' that many do not necessarily see as having a value they can equate into monetary terms. In some cases, its removal rather than its presence is considered of greater value. Third and possibly most crucially, it controls an activity which was both widespread and quite legal, and subsequently confronts a mindset that clearance of native vegetation should be allowed to continue as it has done in the past.

Added to this intractability is the very real problem of accurately identifying where illegal clearances have occurred. Authority (or exemptions) must be sought before most native vegetation clearance is commenced. Only recent advances and an uptake in technological survey methods (and in only a handful of jurisdictions) has allowed regulatory authorities to

  • actively monitor clearance activities and rates; and
  • pinpoint where illegal clearance has occurred.

Prior to the use of monitoring instruments, such as aerial photography and satellite surveillance, there was no systematic way, other than conventional methods of detection, to investigate and uncover non-compliance. Where reliable data had been gathered, it revealed that clearance was still happening at unsustainable rates, with certain areas (such as the west and northwest of New South Wales) particularly vulnerable and often to overt and intentional clearance activity.

The control of illegal native vegetation clearance represents an area of environmental crime that could be described as resting on the ability to challenge a view that the preservation of native vegetation is not a hindrance to development and profitability. Fostering widespread appreciation of native vegetation, however, may not, in the end, be a realistic or achievable goal and alternate methods have been sought instead to achieve compliance. The conventional way of achieving this—through the application of 'threat' of discovery and the distribution of significant penalties for those who have been caught—has not proved effective (Bartel 2008a, 2003) It remains to be seen whether legislated changes to substantially increase penalties, as has occurred in New South Wales, will produce any reliable deterrent effect.

Encouragement to observe laws might be better served instead through a combination of persuasion, inducement and education. Education and social research, advocated by regulatory authorities as an important tool in promoting compliance must be prepared and presented carefully so as to encourage consideration and discussion. An alternate or complementary approach is the incentive scheme, which blends elements of persuasion and inducement to halt further clearance and in some cases, revegetate what has been lost. Unfortunately, no data are published on how readily these schemes have been adopted, how successful these schemes have been in promoting compliance and whether those landowners who have bought into such schemes were already sympathetic to the retention of native vegetation cover on their properties. As a model of land management that possibly represents a successful mechanism in preserving Australia's remaining native vegetation, further research might be directed at evaluating these schemes. These could examine the issues faced by proponents and detractors, establish how relationships are successfully (and not so successfully) forged between the landowner and regulator, and identify the precise nature of how intrinsic and monetary-based values of native vegetation are incorporated into the application of such schemes.