25 September 2019

The Victorian Flora and Fauna Guarantee Act 1988 strengthened to protect biodiversity

This article was written by Mark Beaufoy.

On 10 September 2019 the Flora and Fauna Guarantee Amendment Bill 2019 (Vic) received royal assent and was enacted as the Flora and Fauna Guarantee Amendment Act 2019 (Amendment Act).  The amendments are to commence operation in June 2020 to allow the Department of Environment, Water, Land and Planning (DEWLP) time to finalise amendments to the Regulations and prepare various subordinate instruments and guidance to support the implementation of the Act.

The Act represents a major overhaul to the Flora and Fauna Guarantee Act 1988 – the State’s principal piece of legislation for the conservation of species, habitats and communities of Victorian flora and fauna. It promises to bring Victoria’s biodiversity conservation laws more closely in line with those of the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Act forms part of a suite of State Government initiatives targeted at preventing species decline in Victoria, including a 20-year biodiversity plan and a review of native vegetation regulations.

Significant Changes

The most significant reforms in the Amendment Act include:

  • principles – introduction of a set of principles to guide decision-making under the Amendment Act, including a requirement that proper consideration be given to the rights and interests of traditional owners, the potential impacts of climate change, the precautionary principle, and public and stakeholder participation.
  • listing criteria – introduction of new eligibility criteria for the listing of taxon of flora and fauna where, at the time of listing, it is at risk of extinction in Australia or Victoria in one of the categories of threat set out in the EPBC Act.
  • definition of ‘critical habitat’ – removal of the requirement that a habitat or part thereof be “critical to the survival of [a] taxon or community” – a hard-to-prove requirement that has resulted in only one Critical Habitat Determinations (CHDs) being issued since the 1988 Act was introduced (the determination was later revoked). The new definition of ‘critical habitat’ now only requires that the area in question “significantly contributes” to the conservation of the taxon or community and has been broadened to expressly include areas that are critical for maintaining ecological processes or ecological integrity, such as habitat corridors and climate refuges. The likely effect of this change will be to increase the number of CHDs and habitat conservation orders (formerly interim conservation orders) in force in Victoria. For affected landholders, this may mean that certain activities or processes that are found to adversely affect a critical habitat may be prohibited or require a permit.
  • habitat conservation orders
    • new Ministerial powers to make a habitat conservation order for any area of Victoria that the Secretary of the Department of Environment, Water, Land and Planning (DEWLP) proposes to determine as a critical habitat but in respect of which a CHD has not been made (but only effective for 12 months unless followed by a determination).
    • introduction of a requirement that once a CHD has been made in relation to a taxon or community, the Minister must consider whether to make a habitat conservation order within 2 years of the determination (i.e. 2-year window).
  • new register - the creation of a new register of critical habitat determinations and habitat conservation orders.
  • common national assessment method – the adoption of the common national assessment method for listing threatened species and ecological community.
  • commissioner reports – introduction of a new obligation for the Commissioner for Environmental Sustainability to report every 5 years on the State’s effort to meet targets contained in its Biodiversity Strategy (formerly Flora and Fauna Strategy).
  • penalties and enforceable undertakings –
    • introduction of penalties of up to 2 years imprisonment and fines of up to $39,000 for individuals and $200,000 for companies for some breaches (e.g. for contravening a habitat conservation order).
    • conferral on the Secretary of DEWLP of a power to accept enforceable undertakings from a person who has contravened (or allegedly contravened) a provision of the Act.

Enforcement of the Flora and Fauna Guarantee Act 1988 is overseen the Office of the Conservation Regulator (OCR) which was established in 2019 to oversee certain DEWLP regulatory functions.

If you have any questions about the application of the Amendment Act, please contact Mark Beaufoy or Bridget Phelan.

Thank you to Thomas Dysart for the preparation of this article.

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