President of the National Dingo Preservation and Recovery Program1, and animal research ethics expert, Dr Ian Gunn, today, Wednesday September 10, 2014, expressed dismay at the Victorian Minister for Agriculture, Peter Walsh’s proposal to undermine measures put in place by the previous Labor government under the Flora and Fauna Guarantee Act, to protect the Dingo (Canis lupus subsp Dingo) as a threatened native species in Victoria.
A central issue for the NDPRP, Dr Gunn said, concerns the Minister’s abolition of a 3 kilometre boundary, or ‘buffer zone’, at the interface of public and private land, within which dingoes can be legally controlled (trapped, poisoned or shot) to protect farm livestock from predation. Up to now, dingoes have been protected beyond 3 kilometres, unless special permission was acquired from departmental environmental authorities.
The altered provisions will allow the killing of dingoes beyond 3 kilometres. This buffer zone reflected the decision of the then Minister for the Environment, Gavan Jennings, in 2010 that the three kilometre buffer zone represented a workable compromise between protecting dingo populations and protection of farm stock. The three kilometre buffer zone was given legal standing as part of the provisions of the Flora and Fauna Guarantee Act and was arrived at after extensive stakeholder consultation throughout 2009.
Dr Gunn stated that a number of fundamental questions are raised about the integrity of the way in which threatened species provisions are dealt with in Victoria as a result of Minister Walsh’s alteration of the measures put in place to protect the Dingo in Victoria:
• Only 12 months ago, in September 2013, Minister Walsh renewed the existing dingo threatened species protection measures, including the 3 kilometre buffer zone, for a further 5 years. What could have changed so dramatically in the recent period to alter his 2013 decision that this was an appropriate measure?
• The Minister’s actions appear to indicate an unwillingness to conduct open and transparent government in relation to the natural environment. The existing dingo protection measures were put in place under the previous Labor government as a result of extensive, drawn out consultations with a broad range of stakeholders, including farming and environmental organisations. Yet, the measures are now being hastily removed without any comparable level of consultation.
Dr Gunn reminded the Minister of his obligation to govern in the interests of all Victorians, and for the protection of the natural environment, and not for the benefit of special sectional interests, and called upon any future Victorian Labor government to reinstate the previous provisions of the dingo threatened species listing.
It has been more than two years since Environment East Gippsland began legal action to sue the government’s logging monopoly, VicForests. In August 2009 we applied for an injunction for an immediate stop to logging at Brown Mountain. A year later, on 11 August 2010, the ruling was handed down. We had won our case! This is a report from Environment East Gippsland.
Not only did Environment East Gippsland win the case for Brown Mountain, but we successfully set three major precedents for other community groups:
1. it was the first time any environment group had been granted standing to take the government (or one of its agencies) to court,
2. we were granted an injunction against logging for the first time in Victoria and possibly Australia, and
3. We did not have to provide ‘security’ a type of ‘bond’ incase we lost (VicForests put in what turned out to be a fairly bodgie claim that we should put up $60,000).
The case was set down to be heard in the Sale Court over two weeks, but it stretched out to four weeks through March 2010. Although we were successful, and although the ruling should alter the way VicForests and the government looks after public forests, we are still seeing them disregard the same laws and regulations over which they were sued. Their reasoning? The ruling technically only applied to Brown Mountain. So if we want to show that the law applies across the state, it might take another court case! They are gambling that we won’t resort to this. But to ensure that any further plans to challenge them are stymied, VicForests is refusing to pay our court costs as ordered. EEG and our lawyers have sent reasonable requests for the money owed. After months of letters, VicForests offered us HALF of our costs! This insult means that the case will now be handed over to official auditors to draw up the bill of costs and if not paid, it heads back to the court. More costs and more time wasting.
Left in limbo
Brown Mountain’s 600 year old trees are still firmly in the ground but remain like a ‘hole in a donut’, surrounded by reserved forest and National Park. Despite its values having been well and truly proven in court, it is still mapped as a logging zone and under the control of VicForests. The surveys ordered by the court have not been carried out. We suspect they see this area as symbolic of the battle between ‘government and greenies’. We saw the length and cost the DSE went to in order to gut the heart from Goolengook’s forests. Let’s hope they are simply cooling their heels rather than plotting its annihilation. Being legally trounced by EEG must have hurt. We know that the 1995 Forest Management Plan is considered redundant and in need of rewriting, and we know there are plans of weakening the Flora and Fauna Guarantee Act; both documents helped our court win.
Pre (or Pro)-logging surveys
One outcome of the court case is that VicForests have set up very poorly funded Mickey Mouse pre-logging surveys in some forests. Consultants are hired that employ others to carry out wildlife surveys for some species. The consultants are given minimal time and resources, making the results totally invalid. We are currently applying under Freedom of Information to obtain details of these survey methods and results.
VicForests hired Chela Powell, a young forester with a PhD on the study of beetles in blue gum plantations. They call her their ‘conservation biologist’. She devised some survey methods that seem to us to explain how to look for certain animals in the wrong forests and then frighten them away with the wrong methods. VicForests also decides which forests might be deemed worthy of a survey. It is they who decide if a stand of forest is old growth, and it is they who give themselves the option of including forests that might be considered to be High Conservation Value (HCV). We have reason to suspect that they are doing pre-logging surveys in about half of the old growth they should, and almost no HCV, as this one is optional. There are some low quality forests surveyed that will most likely result in no finds. We also know they have logged old growth forest since the court ruling and are also clearfelling Potoroo habitat where their own contracted survey teams discovered them!
What does this all mean on the ground?
The legal finding for Brown Mountain should mean that logging agencies and land managers have to be cautious in regards to the possible existence of threatened species where they plan to destroy or alter their habitat. This can be extrapolated to every other forest, meaning cautionary management must be shown (as in the Precautionary Principle, much debated to in court) when planning to destroy or modify likely habitats of threatened species. This could include areas in which the DSE plans to carry out roading or prescribed burns, as well as clearfell logging. DSE is stating this isn’t the case, but provides no explanation. Surveys should happen across all forests – regardless of their age or conservation value. But it’s not.
VicForests have a few options:
· Honour this ruling and pay for decent, credible surveys in every planned logging coupe. Don’t log where rare species exist.
· Honour this ruling but do the cheapest possible ineffective surveys that cover minimal forest areas.
· Accept that the logging industry and its shrinking markets are in terminal decline and wind down operations to suit.
· Influence the revision of the Forest Management Plan to remove prescriptions to protect rare wildlife.
· Push to have the Flora and Fauna Guarantee Act watered down to make current mandatory actions ambiguous or ‘flexible’.
Greg Barber, MP for the Greens, asked a question of the then ALP Environment Minister the day after the September judgement. Minister Jennings said he would honour the decision. The Shadow Minister for the environment, Liberal member Mary Wooldridge, also promised to honour the court ruling. Now that a Liberal-National party is in Government, we see a clear attempt to take no action while planning changes of environmental legislation.
The court ruling
It was August11 and everyone stood as Justice Robert Osborne entered and took his seat. Throughout the March case, he always seemed to have a quizzical, bemused look on his face as he bowed to us on entering and leaving. Again he bowed and so did we. We had been anxiously waiting months for this moment. He began to read his findings. The court room booked for the judgement had to be changed to accommodate the one or two hundred supporters. When Liz and I walked into the upstairs gallery there was a sea of friendly faces and standing room only. In one corner was a very small huddle of grey suits representing VicForests.
Our hearts sank to the floor as he acknowledged some points which VicForests had made, and our points on the crayfish and kite that weren’t strong. But then he uttered the word “Nevertheless ...” and our hearts jumped back into place as we anticipated his next words. Basically he told VicForests that they can’t log the old growth forests of Brown Mountain until VicForests had:
1) put in place protection zones for the Potoroo in three of the four planned logging coupes,
2) had qualified people survey in the correct season for Giant Burrowing and Large Brown Tree Frogs as well as the Spot-tailed Quoll, in all four coupes,
3) created a 100 ha zone to protect the gliders of coupe 15 and,
4) reviewed the protection measures offered to Powerful and Sooty Owls in East Gippsland.
But he didn’t go far enough to say they must do this to the satisfaction of the court, only to the satisfaction of the Director of Biodiversity Policy and Programs within DSE. That was the weak point.
He also ordered that we:
· give DSE copies of all photographic evidence we have of the presence of the Long-footed Potoroo in the area (our lawyers told us not to provide this once the case had started); and
· show DSE the precise location of where one of the Potoroo images was captured as used in our evidence by one of the surveyors.
Our lawyers argued that a ‘compliance in an unsupervised fashion’ and a ‘self-executing injunction is not appropriate’ given VicForests’ past record of strong resistance to compliance and an ‘ineffective regulator’ (DSE). They said that the history of this matter showed that there was no transparency or honest dialogue from DSE/VicForests towards EEG.
However the judge claimed it shouldn’t need to go back to court for tick-off when there’s already a DSE statutory framework in place to resolve habitat protection (which we just proved wasn’t working). As DSE wasn’t part of the dispute, he considered them as apart from it. But we showed they were as good as compliant with VicForests’ refusal to properly protect the wildlife. Still, if given the legally correct reserves, these logging coupes should all receive protection, even if vulnerable to being moved and swapped as Special Protection Zones.
To ensure proper transparency, Justice Osborn ruled that VicForests should give EEG:
· relatively detailed maps of the protection zones for the Potoroos and owls within 14 days of their creation.
· details of any survey results of the Giant Burrowing Frog, Large Brown Tree Frog and Spot-tailed Quoll.
· 28 days notice in writing of plans to log any of the four coupes.
 Editor: "Standing" is the legal right to initiate a law suit. Yes, if you thought that anyone could initiate (via a lawyer) or as themselves, a complaint of a failure to abide by regulations or laws in an Act, think again. Usually this right is very much reserved, with the effect of protecting vested interests and specialists. Not only did EEG set a precedent in getting standing, but I think they set a precedent in using the Flora and Fauna Guarantee Act 1986 in court! I believe that no action had previously ever been made using its powers!
A new you-tube film about the forest protectors' camp and community at Goongerah, South East Gippsland, near Brown Mountain. The long trial for the wildife on Brown Mountain has come to an end - all except the final decision by Justice Osborn, which all await with baited breath. This is a land-mark trial where real-life avatars have come out and opposed the 160 year old treatment of Victoria's forests and animals as colonial spoils for the taking and Victorians as mere servants to the State.
Read inside a fascinating summary of the arguments and evidence from either side: Vic Forests (for logging) and Environment East Gippsland Inc. (for nature). Revelatory of Department of Environment and Sustainability.
Court case finishes – summary of the final 3 days.
The final days of summing up both VicForests’ and Environment East Gippsland’s arguments were heard in the Melb Supreme Court on Tuesday, Wednesday and Thursday (23rd-25th March). These were the last submissions presented to Justice Osborn who heard the 17 day trial that started on the 1st March.
Both sides presented their condensed arguments from the past 3 weeks. Early in the case, the economic claims were not allowed as VicForests (VF) had not made any allegations in its defence about economic impact, and there was only summary evidence supplied by VF, without details. The arguments focused on the laws covering protection of threatened species and how VF did or didn’t abide by them. Justice Osborn has reserved his decision . Our legal team have said he could hand this down in a month or two or three ...
Despite some fairly revealing and insightful evidence being given and some quite startling information to come out of cross examination of witnesses, the decision will be looking at the complexities of the laws governing forests and wildlife management.
A new you-tube film about the forest protectors' camp and community at Goongerah, South East Gippsland, near Brown Mountain.../files/Brown-Mt-Supporters-in-Melb-for-trial-.jpg" vspace="13" hspace="13" align="left">
A support team of about 45 people attended the Melbourne start of the case to show that there was widespread interest in Brown Mountain. Thanks everyone who came along and who sat through the proceedings.
1st Day (Tues) – the defence (VicForests) lawyers had the stage on day 1 and delivered their case.
To those who hadn’t heard the facts, arguments and cross examinations of the previous 3 weeks, it could have sounded fairly reasonable and even worrying. Read our responses to their arguments below. VF lawyers’ arguments consisted of the following:
* EEG didn’t have standing to take the case to court as we are too small a group, don’t have a special interest in Brown Mountain, only an emotional or intellectual interest. The fact that we didn’t apply to be on the local Shire environment committee, and the claim that we didn’t take part in the Nat Estate study on 1990 – (but we actually did) and various other arguments were used to attempt to argue we shouldn’t be able to sue VicForests.
* It was DSE that should have looked out for threatened species, not VicForests. VF can’t change zonings.
* The Potoroo wasn’t ‘detected’ within the meaning of the action statement (FFG Act) - although the animals and the sites were confirmed, the full two weeks of footage was withheld by EEG (under instruction from our lawyers) until late 2009 – making the authorities suspicious of possible tampering and was the reason given by VF for not protecting the area.
* Language in the FFG Act and Sustainable Forests (Timber) Act, is not enforceable.
* VF noted that the Forest Management Plan was out of date (ended in 2006), which generated much discussion. Justice Osborn pointed out that if it was no longer applicable, then all logging in EG was illegal as the FM Plan is needed before forest can be logged. That point was then quickly resolved.
* The Precautionary Principle, which was a major argument in the whole case. It was first claimed by VF not to give rise to any legally enforceable obligation against it, and even if it did, VF claimed it had observed the PP even if it wasn’t thought to be regarded as enough precaution.
* VF claim Potoroo wasn’t ‘detected’ to their or DSE’s satisfaction,
* On Quolls - there are 75 already protected in EG and that was enough,
* For the new species of crayfish – it’s still being named and so doesn’t have a prescription for protection and the 100 metre buffer around the creek will protect it
* Sooty and Powerful Owls – only dusk calls detected but no confirmed nesting or roosting sites so no need to protect. Plus there are enough Sooty Owls Management Areas and Powerful Owl Management Areas, despite some evidence from DSE suggesting the protection zone targets had not been reached.
* Giant Burrowing Frogs – even if it is high quality and likely habitat, none have yet been detected.
* Hollow Bearing Trees – logging prescriptions are claimed to look after them.
* Gliders are there in high numbers, yes - but it’s not for VF to protect them and 100 mts along creek should do anyway.
* The Precautionary Principle requires caution, but not total infallibility. Actions to express adherence to the PP can be many. VF argued that a 100 metre buffer along the creek was caution enough for all the species.
2nd day of summing up (Wed) –EEG, the plaintiff’s case was presented.
Debbie Mortimer SC argued that:
* The standards and conditions in the FFG Act Action Statements, Forest Management Plan and the Code of Forest Practices hasn’t been and can’t be complied with by VicForests.
* VicForests was the “agent of harm” about to begin clearfelling when we applied for the first injunction, and VF was as obliged to adhere to the law for threatened wildlife as was DSE.
* VF don’t need to have DSE declare a conservation zone for VF to adhere to the law or decide not to log.
* The Allocation Order (giving forests to VicForests from DSE), Timber Release Plan and the Code (for logging) all mention adhering to the Forest Management Plan.
* The issue of whether EEG has legal standing to bring the case to court was argued well for showing we did have standing. It had not been objected to by VF strongly before we embarked on the 17 day trial.
* If various surveys had not have been carried out (owls, Gliders, Crayfish and Potoroos), the court case would not have commenced. Surveys show a genuine interest.
* Obligation on VF are mandatory – they don’t allow them to ‘duck and weave’ around these obligations.
* The main law is the Flora and Fauna Guarantee Act – it deals directly with Threatened Species, and binds the state/crown to protect endangered wildlife. The FM Plan and the Code both refer to it.
* Forests are a community property. Managed for common good into future. DSE’s position in the evidence given by Lee Meizis was that the Timber Release Plan gave ownership of forests to VF to exploit, but with the right to exploit comes responsibilities for conservation.
* FFG Act has strong ‘must do’ language and is imposed on government authorities. Important objectives of FFGA disregarded by VF. Action Statements within the FFGA are enforceable.
* Debbie Mortimer said “In every way, VicForests pushed away from its conservation duties” to benefit its access to forests for logging.
* VF is not abiding by the law by merely reading the Action Statements.
* Logging high quality Quoll habitat is endangering the animal’s survival. At odds with the Precautionary Principle because this species is only found at a functional level in East Gippsland now.
* Sustainable Forests (Timber) Act directly forced VF to adhere to the Code. Allocation Order also states VF MUST comply with CFP, PP, AS and FMP.
* Not complying with the Code was a breach. Acts refer to the Code being adhered to.
* VF must consider advice from relevant experts in Flora and Fauna. The advice of these internal DSE experts were ‘completely sidelined’ during the process that lead to the decision to clearfell Brown Mountain. It was also claimed that the Minister was not given important information on these species.
* The 100 mt buffer offered by VF would not protect the Gliders, Quoll, owls, Potoroo and Large Brown Tree Frog and was unknown if it would adequately protect the Giant Burrowing Frog, Brown Mt Crayfish and Square-tailed Kite. Leaving additional large trees while logging and burning the remainder would be unlikely to protect the habitat values of hollow bearing trees (85 out of 207 was all that survived the logged and burnt coupe across the creek in April 2009).
* The guideline to protect 100 ha for rich populations of gliders is self-regulating and doesn’t need major fuss – just needs to be mapped and complied with.
* Justice Osborn discussed decent reserve designs and ‘whacking in’ some reserve along the creek.
* The oft-cited ‘risk-weighted consequences’ of the precautionary principle the VF lawyers used daily, does not mention social or economic ‘balance’ and in context is only about conservation risks and consequences.
* We are dealing with some species in a demonstrable state of decline. Failure to halt damage is serious. There is lack of scientific certainty as there is no research or info on impact of logging.
* New reserves mean nothing unless we assess the quality and type of the habitat, logging history etc.
* BHP was used as an example of a company which must employ specialist ecologists/biologists if it plans to carry out potentially damaging work. VF either needs to employ biodiversity staff, or get in consultants to survey and advise forest planning.
* Potoroo detections 100% authentic – no questioning by VF of witnesses – fully accepted, yet despite 3 verified detections, VF made no attempt to consult with DSE biologists or protect 50 ha for each as stated in the FFGA.
* DSE set up its own ‘rules’ outside of existing legislation.
* DM asked for full injunction to logging.
Day 3 – Thursday – response from Defendant (VF)
* Having to abide by the SFT Act could mean that every logger, truckie, contractor, roading operator must comply with these laws as well. Does that mean every worker has to set up a biodiversity unit and consult biologists?
* Argues again, it’s all DSE’s responsibility.
* Argues that the words for Greater Glider protection in the FMP says “approximately 100 ha” is unenforceable – how much is ‘approximately’?
* VicForests Lawyers couldn’t find any expert biologists to speak for them. They tried.
* Not being given the entire potoroo footage was the whole problem.
* The 400 ha reserve to the (drier, steeper) west is a benefit for all the species.
* Crays were found in the creek next to a previously logged forest so therefore they can survive OK.
* Potoroo no 2 (on camera) wasn’t used in original evidence (it was actually discovered after writ was served but this was overlooked by VF lawyers).
* The hair tube evidence of the Potoroo near proposed coupe 19 didn’t come with a copy of the note when it was sent off for analysis – so how do we know where it really was?
Final Judgement awaits
This ended the long trial for the wildlife of Brown Mountain. We await Justice Osborn’s final decision ...
Our supporters have been showing astonishing determination to have our forests and wildlife protected! We’ve hit our first minimum target which is really something for a small enviro group. But due to the case having gone for 16-17 days when it was only down for a 10 day hearing, we are still needing some help to cover the extra costs for this time in court with our team, a couple of extra witnesses and various associated costs.
Source of this article was "[EnvEastGipp] Brown Mt Detailed Update, 29 March 2010" , almost verbatim, but without all the photos. The website for Environment East Gippsland is here.
"How thick can a political skin get?" writes Victorian wildlife ecologist, Hans Brunner.
Mr. Brumby's minister for the Environment, Gavin Jennings, turns a damning report by the Auditor-General on endangered species into receiving a “pat on the back”.
In a media report he welcomes the Auditor-General’s report and stating, “ The findings are a “pat on the back” as well as a remainder that we must continue working to protect Victoria’s unique plants and animals”, hence, nothing will change.
He has received this report with a poker face grin and treated it like water of a duck.
Here are some of the Auditor-General’s remarks:
• “ At the current rate of progress, with existing resources, it will take a further 22 years for the department to complete action statements for the 653 items currently listed threatened.”
• “ Of those threatened species listed as threatened, less than half had an action statement prepared”.
• “ The gap between listed items and items with action statements continue to widen.”
• “On the advisory list are 2249 species of flora and vertebrate fauna.”
• “ Listing decisions are compromised by a lack of reliable, up to date, scientific data and limited stakeholder participation.”
• “ The Act enables the department secretary to prepare formal plans to guide the management of threatened flora, or potentially threatening processes – NO MANAGEMENT PLAN HAS BEEN PREPARED TO DATE.”
• “ This review concluded that the existing regulatory policy framework for the protection of threatened species is in need for a major overhaul.”
• “ There is no legal power to compel department or other agencies to complete the directions within action statements. Departmental staff who prepare and monitor action statements relay on GOOD WILL of other departmental and agency staff to undertake tasks in the action statements.”
• “ The full range of management processes and consideration and control measures available in the act has NOT BEEN USED.”
• “ The greatest human threat to other species is habitat loss. Accordingly, tools to protect ecologically significant areas of habitat are essential.’
The report also pointed out on numerous occasions on inefficiencies, duplications and limits of resources. What it missed to clearly highlight is that huge amount of time and money is spent on listing endangered species and the production of management plans but no further action is taken or enforced to properly rectify the problems.
A typical example is the under resourced and incompetent handling of the nationally endangered Eastern Barred- and Southern Brown Bandicoot. Further more, habitat loss is still continuing unchecked with no realistic offsets possible.
If this deserves “a pat on the back” for Mr. Brumby, ordinary, daily work would have to make him immortal.
Wildlife Ecologist, Victoria
(shown left pointing out bandicoot activity in the Frankston area, Victoria)
In a press release on
April Fools Day 2009,
Victoria's Minister for the Environment, Gavin Jennings
interpreted as a 'pat on the back' a condemnatory report by the Auditor General on the Victorian Flora and Fauna Guarantee Act 1988. Jennings' response seems like a crude damage-control exercise. The report said "the government's lack of baseline data or output performance measures means that it is not possible to conclude whether or not the Act has achieved its primary objectives. The available data, which is patchy, indicates that it has not," and notes failure to use the conservation and control measures in the Act, inadequate listing of threatened species, failure to develop action statements, to monitor implementation of these, or to assess their effectiveness, and that penalties for offences under the Act have not been reviewed or updated and therefore are not an effective deterrent." The Minister and the Government should resign; they are a sad joke.
The media release cited was from the Minister for Environment and Climate Change, Gavin Jennings, was dated Wednesday, 1 April, 2009, entitled, "Government welcomes auditor-general report".
The Australian Wildlife Protection Council has long said that Victoria lacks any framework within which our fauna are managed and has noted that there has never been a prosecution under the Victorian Fauna and Flora Act since it was created in 1988. Victorians who have looked and listened carefully have noted the silence in many forests once alive with song and movement, the deserted grasslands, and the corpses of kangaroos, koalas, wombats on our roads. Those of us who have tried to tackle the situation with Department of Sustainability Victoria (DSE) have also observed the avoidant, unassertive, endangered staff and ever-diminishing habitat of the biodiversity section of DSE and its encroachment by primary industries, find this comes as no surprise.
But will the backbenchers of the Bracks/Brumby government's aspirational classes come to their senses and stop chorusing on cue that Victoria is the "best place to live work and raise a family". Instead, will they stand up for their constituents on nature, justice and democracy and refuse to kowtow to hollow leaders more interested in commercially trading property and finance than good government?
Conserving biodiversity is core to responsible environment and natural resource management and is fundamental to maintaining both quality of life and economic well-being, both now and in the future.
The Flora and Fauna Guarantee Act 1988 (the Act) is the primary Victorian legislation providing for conservation of threatened species and ecological communities, and the management of processes that threaten the sustainability Victoria's native flora and fauna. The Act establishes a listing process. Once an item is listed the Act sets out a range of management processes and conservation tools that can be implemented to protect and conserve species.
Since the Act was passed in 1988, 653 plant and animal species, communities and threatening processes have been listed.
The objective of the audit was to review the Department of Sustainability and Environment’s (the department) administration of the Flora and Fauna Guarantee Act 1988 and to assess how effective the processes and actions developed under the Act have been in preserving Victoria’s native flora and fauna.
The full range of ‘management processes’ and ‘conservation and control measures’ available in the Act has not been used.
Action statements are the primary tools in the Act being used to protect and conserve threatened flora and fauna. However, the effort directed to listing threatened species and processes has not been matched by effort to develop action statements, to monitor the implementation of actions, or assess their effectiveness. The gap between listed items and items with action statements continues to widen.
The lack of baseline data and outcome or output performance measures means it is not possible to conclude whether the Act has achieved its primary objectives. The available data, which is patchy, indicates that it has not.
2 Administration of the Flora and Fauna Guarantee Act 1988
1.3.1 The listing process
The department has invested most effort in listing threatened species. However, there is duplication of processes within the department and with the Commonwealth Government’s listing process. The time taken to list an item, while within the three year (156 weeks) timeframe specified under the Act, continues to exceed the department’s internal benchmark of 31 weeks. The internal benchmark is an optimum period that requires each stage to be completed as quickly and reasonably as possible. This benchmark could not always be met in part due to factors beyond the department’s control, such as the Scientific Advisory Committee requiring multiple meetings to consider a nomination.
Over 800 items have been nominated for listing and 653 have been listed under the Act. However the department’s ‘advisory’ list (a separate list not subject to the listing process), contains over 2 200 species of flora and vertebrate fauna. Many of the species on the advisory list are likely to satisfy the criteria for the ‘threatened’ list maintained under the Act.
The listing process while conforming with the Act is compromised by a lack of up-to-date scientific data and by limited stakeholder participation. The department’s information systems relating to conservation and biodiversity are incomplete and disjointed. Major system development and integration projects are underway to address current shortcomings.
1.3.2 Conservation tools
The various management processes, conservation and control measures available under the Act to conserve and protect flora and fauna are not being used, largely because of their perceived complexity and difficulty of administering these provisions.
The department has relied on provisions in other environmental legislation, strategies, policies and plans in preference to those available under the Act to conserve and protect flora and fauna.
While ‘action statements’ are mandatory, their development and finalisation has been protracted. There is no time limit in the Act for these tools to be finalised—‘as soon as possible’ is the time standard set. At the current rate of progress, with existing resources, it will take a further 22 years for the department to complete action statements for the 653 items currently listed as threatened.
The Act The Act was reviewed by the department in 2002. This review concluded that ‘the existing regulatory and policy framework for the protection of threatened species in Victoria is in need of a major overhaul.’ A number of recommendations to improve the Act resulted from this review, but no amendments to the Act have been made.
Audit summary Administration of the Flora and Fauna Guarantee Act 1988 3 The state government’s April 2008 green paper, Land and Biodiversity at a Time of Climate Change, acknowledges the need for legislative reform (State and Federal) and the proposed white paper will identify the extent to which legislative change is required.
1.4 Recommendations The department should:
• review the internal timeframes it sets for listing, against the resources it applies and the processes it adopts, to confirm they are realistic
• continue to build its knowledge-base on threatened species, causes of their decline and how best to mitigate threats to them; and expedite the transfer of information held on manual files to the ABC system
• formalise its collaboration on conservation activity with the Federal Government and seek a joint agreement to eliminate duplication in the listing process (Recommendation 4.1).
The department should:
• assess the resources it applies to developing, monitoring and reviewing action statements and establish a prioritised action plan to address the backlog of listed items with no action statements
• include in new and revised action statements the processes by which it will monitor progress and evaluate the effectiveness of each initiative within the action statement • review the efficacy of conservation and protection tools available under the Act
• assess whether the listing process is the most effective and efficient means of protecting species and communities
• develop a suite of output efficiency and outcome effectiveness measures to monitor and assess its conservation efforts (Recommendation 5.1)."