The South Australian Parliament has passed landmark legislation to protect South Australia’s biodiversity and to provide for biodiversity based natural capital projects bringing major reform to South Australia’s environmental laws.
On 26 June 2025 the Biodiversity Act 2025 (SA) (“Biodiversity Act”) received royal assent and came into effect as law. The Biodiversity Act will commence on a date to be fixed by proclamation and is expected to gradually come into operation over the course of approximately 2 years.
The Biodiversity Act is the first of its kind in Australia and dramatically changes South Australia’s existing approach to the conservation, restoration and enhancement of biodiversity in South Australia. It is extremely broad and consolidates an array of biodiversity protections that were previously spread across several different pieces of legislation into one Biodiversity Act.
Protections and enhancements of critical habitats and threatened ecological communicates are a key emphasis of the Biodiversity Act.
The Biodiversity Act also lays the foundations for biodiversity based natural capital projects, including the:
establishment of sanctuaries on public and/or private land, crown land and pastoral land (with the consent of landholders (including pastoralists)) (“Landholder Consent”);
entry into biodiversity agreements (which run with the land for a term of not less than 20 years, or if no term is specified, in perpetuity) and biodiversity management plans in relation to public and/or private land, crown land and pastoral land (with Landholder Consent);
issuance of tradeable “environmental benefit credits” to persons who have achieved, or propose to achieve, an environmental benefit on land that is subject to a biodiversity agreement and biodiversity management plan. These credits can be traded or used to offset a requirement under the Biodiversity Act to provide a significant environmental benefit.
We expect these mechanisms to be well received in the market as biodiversity based natural capital projects continue to become more prevalent whilst at the same time investors demand legitimacy of their natural capital investments.
Despite these positives, there is uncertainty as to some critical matters which have not been addressed in the Biodiversity Act. This is perhaps because of the incredible speed at which the Biodiversity Act was drafted, consulted on (for only four weeks), and passed through Parliament.
One of these matters is that the Biodiversity Act imposes a general biodiversity duty on all South Australians which requires a person to not carry out or undertake any activity that harms or has the potential to harm biodiversity unless the person has taken all reasonable and practicable steps to prevent or minimise the harm. The scope of this duty is incredibly broad, and its application is uncertain and may have unintended consequences including for the agricultural sector.
There are also no transitional provisions in the Act, leaving uncertainty as to when matters regulated by the Biodiversity Act will be addressed under the existing regime or under the Biodiversity Act.
It is also important to note that the draft regulations, policies and guidelines which accompany the Biodiversity Act are yet to be released by the State Government. These will need to be carefully reviewed in conjunction with the Biodiversity Act as they will deal with many important matters under the Biodiversity Act.
Finally, the Biodiversity Act includes stringent requirements in relation to clearing native vegetation and significant penalties (including criminal conviction) for illegally clearing native vegetation and/or harming wildlife. Of particular note is, following criminal conviction for illegal native vegetation clearance, the ERD Court’s new power to effectively ban development of the land to which the offence relates for a period of up to 10 years.
For more information, please contact Sam Richardson and Deanna Riebolge of our specialist Agribusiness team.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.