Nature protection laws
All the administrative systems and bodies of law discussed in this chapter are relevant to the protection of natural environments and built environments. The activity complained about might require planning permission, or an environmental impact assessment or environmental protection permission. All these legal processes have enforceable opportunities for input by members of the community, as described above.
Other laws specifically designed to protect nature and natural areas include the EPBC Act, Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’), Wildlife Act 1975 (Vic) (‘Wildlife Act’) and National Parks Act 1975 (Vic).
The Victorian Government’s Officer of the Conservation Regulator (OCR) provides a central point of coordination and oversight for DEECA’s regulatory functions. These include regulating natural environments, logging, public land use, fire prevention, wildlife and biodiversity. Information about the OCR’s work and responsibilities is available at its website.
The need to obtain a planning permit to remove native vegetation (clause 52.17 of all Victorian planning schemes) is an important part of the framework of nature protection laws in Victoria. Guidelines on the removal, destruction and lopping or native vegetation were incorporated into the planning scheme in 2017. In the assessment of permit applications, there is now greater emphasis on avoiding the removal of vegetation. Other environmental protection measures contained in overlays (e.g. the vegetation protection and environmental significance overlays) are also important elements in the framework.
Many natural systems and habitats are in the state’s forests and on public land, but outside national parks or reserves, and are vulnerable to logging operations. Actions under the national system of regional forest agreements (RFAs) negotiated under the Regional Forest Agreements Act 2002 (Cth) are exempt from EIA under the EPBC Act. The Victorian Government announced an end to native forest logging and consequently, its five RFAs will end in December 2024.
Forestry operations are otherwise carried out under the Forests Act 1958 (Vic), Sustainable Forests (Timber) Act 2004 (Vic), Conservation, Forests and Lands Act 1987 (Vic) and various regulations, codes and management plans made under them.
Specific provision is made for third-party enforcement of planning schemes (see ‘Enforcement’, above). However, in most cases, Victorian nature protection laws do not include specific provisions that enable enforcement by individuals or environment organisations. In these cases, challenging a failure to comply with these laws may be possible at common law by way of judicial review of government decisionmaking – although such legal action is expensive and complicated as it must be heard in the Supreme Court and standing must be proven.
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Amendments to the FFG Act update it in some important ways. The amendments:
revise and expand the objectives of the FFG Act, which now include a focus on both preventing species and ecosystems from becoming threatened, as well as enabling their recovery;
include new principles guiding the FFG Act;
include a new comprehensive duty on public authorities to give ‘proper consideration’ to the objectives, to a biodiversity strategy made under the FFG Act, and to other matters;
update the listing process for threatened species and communities making it similar to national and international listing arrangements;
update and clarify conservation tools such as critical habitat and conservation orders; and
provide new enforcement measures including enforceable undertakings.
The FFG Act now provides additional legislative guidance on the use of conservation measures, such as critical habitat determinations and various forms of conservation agreement, although use of these measures remains discretionary. New regulations have been made governing threatened species listing but further regulation or guidance on other matters have not.
An independent review of the Wildlife Act commenced in April 2021. The review was established to consider the Wildlife Act’s objectives and scope, whether the Wildlife Act establishes a best-practice regulatory framework for achieving its objectives, whether the Wildlife Act appropriately recognises and protects the rights and interests of Traditional Owners and Aboriginal Victorians in relation to wildlife and their role in decision-making, and the best way to encourage compliance with the Wildlife Act, including whether offences and penalties are appropriate. The panel’s final report was provided to the government in December 2021. At the time of writing, the government was yet to publish the report or its response. Further information can be found at DEECA’s website.
Nature protection laws
Chapter: 11.3: Environment and planning law
Contributor: Dr Dru Marsh, Senior Adjunct Lecturer, Public Service Research Group, School of Business, UNSW Canberra; Night Service contributor, Fitzroy Legal Service; Glenn Osboldstone, Senior Lawyer, DTP Legal; and Deborah Hollingworth, Manager, Aboriginal Strategy and Partnerships, Environment Protection Authority Victoria
Current as of: 1 September 2024
Law Handbook Page: 942
Next Section: More information
