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Where's the Guarantee?

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Where's the Guarantee? edo monitoring victoria’s report environmental laws series report no.3 3 Report Title Subtitle velecum voloren disciant aut doles que non pa non reperrum estium Where’s the Guarantee? Implementation and enforcement of the Flora and Fauna Guarantee Act 1988 & Wildlife Act 1975 about the environment defenders office (victoria) ltd The Environment Defenders Office (Victoria) Ltd (‘EDO’) is a community legal centre specialising in public interest environment law. We support, empower and advocate for individuals and groups in Victoria who want to use the law and legal system to protect the environment. We are dedicated to a community that values and protects a healthy environment, and support this vision through the provision of information, advocacy and advice. In addition to Victorian-based activities, the EDO is a member of a national network of EDOs working collectively to protect Australia’s environment through public interest planning and environmental law. For further information contact: Nicola Rivers, Law Reform Director Environment Defenders Office (Vic) Ltd Telephone: 03 8341 3100 (Melbourne metropolitan area) 1300 EDOVIC (1300 336842) (Local call cost for regional callers) Facsimile: 03 8341 3111 Email: [email protected] Website: www.edovic.org.au Post: PO Box 12123, A’BECKETT STREET VIC 8006 Address: Level 3 The 60L Green Building 60 Leicester Street, Carlton SEEK LEGAL ADVICE REGARDING SPECIFIC CASES While all care has been taken in preparing this publication, it is not a substitute for legal advice in individual cases. For any specific questions, seek legal advice. Produced & published by Environment Defenders Office (Victoria) Ltd ABN 74 052 124 375 Publication date: 23 March 2012 ISBN 978-1-875668-57-1 contents 1. About this report series 2 2. Report highlights 3 3. Background 5 3.1 Biodiversity regulation and the Department of Sustainability and Environment 5 3.2 The role of the Minister 5 3.3 The Auditor-General’s performance audit 6 3.4 The role of this report 6 4. Flora and Fauna Guarantee Act 1988 7 4.1 Regulatory objectives 7 4.2 Flora and Fauna Guarantee Strategy (Biodiversity Strategy) 8 4.3 The listing process 9 4.4 Management processes 11 4.5 Conservation and Control Measures 15 4.6 Resources for implementation 18 5. Wildlife Act 1975 19 5.1 Regulatory objectives 19 5.2 Unprotected wildlife 19 5.3 Regulations 22 5.4 Reserves 22 5.5 Licensing and authorisations 24 6. DSE’s regulatory activity 27 6.1 Compliance monitoring and enforcement policy 27 6.2 Compliance monitoring and enforcement activity 27 7. Transparency and accountability 30 8. Conclusions and recommendations 30 APPENDIX A: Information that DSE should publish annually 32 Where’s the gUARANTEE? REPORT NO.3 1 1. about this report series This is the third report in a series, Monitoring Victoria’s Ultimately we aim to ensure that Victoria’s Environmental Laws, to be published by the EDO. environmental laws are used to their greatest The reports examine the extent and effectiveness extent to protect and improve the environment. of government’s implementation and enforcement of key environmental laws in Victoria. Each report focuses on one area of environmental regulation. Each report will be updated and released The EDO has witnessed how Victoria’s environmental every two years to provide an ongoing ‘report card’ laws are implemented and enforced for over 20 years of how environmental laws are being used. While we through our advice to and representation of the hope the 2011–12 reports will provide useful baseline data community on environmental law issues. Over that time and recommendations for improvement, the full value we have become aware of countless environmental of the reports will be seen over time through their ability laws that are in force but are not effectively used by to compare changes (and hopefully improvements) in government to protect or improve the environment. the implementation of environmental laws over the Of further concern is the lack of publicly available next decade. information indicating how government regulators implement and enforce their laws. Public release The reports are compiled using publicly available of this information is vital to ensure government information, including information sourced from is accountable for the way in which it operates. government agency websites, annual reports, and reports from review bodies such as the Auditor-General’s and The Monitoring Victoria’s Environmental Laws Ombudsman’s offices. The EDO also requests information series has three main aims: directly from the relevant regulating agency. Information is 1. To empower the public by providing a consolidated not always forthcoming and instances where information source of information on whether regulatory could not be found are highlighted in the report. agencies are implementing and enforcing their regulatory responsibilities under key environmental laws. The information will be a resource for the community for submissions or discussions with government, to encourage greater action and compliance by government. 2. To promote transparency and accountability by identifying what implementation and enforcement information is publicly available and, if that information is lacking, to inform government agencies of the type of information that should be publicly available. 3. To improve the implementation and enforcement of environmental laws by encouraging greater action and compliance by government agencies. 2 ENVIRONMENT DEFENDERS OFFICE LAW REFORM REPORT SERIES 2. report highlights This Report examines how effectively the Department of Three years on, our report finds that the FFG Act Sustainability and Environment (DSE) is implementing and remains very poorly implemented, with many of the legal enforcing the regulatory framework for the protection measures to protect flora and fauna never used. Fewer and management of Victoria’s biodiversity under the than half of the 675 threatened species listed under the Flora and Fauna Guarantee Act 1988 (FFG Act) and the FFG Act have recovery Action Statements prepared, Wildlife Act 1975 (Wildlife Act). despite this being a mandatory requirement of the FFG Act, and only one new Action Statement has been The FFG Act provides DSE with a framework to developed in the past year. conserve and protect threatened species and ecological communities and to manage processes that threaten By contrast, the procedures established under the Wildlife native flora and fauna. It sets out a range of tools and Act appear to be used by DSE. However it is extremely measures that can be used to do so. The FFG Act operates difficult to locate information about and decisions made in conjunction with the Wildlife Act, which establishes under the Wildlife Act. Often, the only means by which procedures to promote the protection and conservation to access key information – such as declarations of of wildlife and sustainable use of and access to wildlife, unprotected wildlife, State Wildlife Reserves, State Game including the creation of reserves, the adoption of Reserves and Nature Reserves – is through extensive and licensing and authorisation procedures and the creation time-consuming searches of the Government Gazette. of offences. EDO considers that this information should be more readily accessible to the public. One of the important requirements under the FFG Act is the development of a ‘Flora and Fauna Guarantee This is not true only of the Wildlife Act. Publicly available Strategy’ (Biodiversity Strategy). The Brumby data regarding DSE’s compliance monitoring and government committed to renewing the Biodiversity enforcement activity under both Acts was very limited. Strategy and a draft was released for public comment DSE does not have an official compliance monitoring in June 2010. However since the change of government and enforcement policy or strategy. Nor does it report on no progress has been made on it and it appears the compliance and enforcement activity separately for each Baillieu government has no plans to revive it. Act; rather it gives the total activity across eight Acts. This is a significant weakness in DSE’s implementation The Victorian Auditor-General’s 2009 performance of both Acts. In this report, EDO makes a number of audit of the administration of the FFG Act provides recommendations regarding the type of implementation an important assessment of the administration and and enforcement data that we consider should be publicly implementation of the FFG Act. The Auditor-General reported by DSE each year with respect to the FFG Act found that, as a general rule, the processes and measures and Wildlife Act. available to conserve and protect flora and fauna have been abandoned by DSE, largely because of their perceived complexity and the difficulty of administering the provisions.1 The Auditor-General also identified a lack of resources as a significant reason for DSE’s poor implementation of the FFG Act. 1. Victorian Auditor-General’s Office, Administration of the Flora and Fauna Guarantee Act 1988, p 39. Where’s the gUARANTEE? REPORT NO.3 3 KEY RECOMMENDATIONS Improving implementation of the Flora and Fauna Guarantee Act 1988 • DSE should implement the recommendations made by the Victorian Auditor-General in his 2009 audit report, Administration of the Flora and Fauna Guarantee Act 1988. • DSE should continue to improve its threatened species listing processes to ensure it has access to up-to-date scientific data and can complete listing in a timely manner, so that it can process the backlog of listings and implement the new national requirements. • The Victorian Government should develop and consult on a new Biodiversity Strategy as a priority and provide clear goals for biodiversity protection including how those goals are to be achieved. • The Victorian Government should make any proposed review of the FFG Act a public process, with opportunities for community and expert input. • DSE should reconsider the use of critical habitat determinations, interim conservation orders and other conservation measures in the FFG Act, and develop a policy for when they can be used to most effect and at least cost so that they can be used to protect species, as the Act intended them to do.
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