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A disappearing act – the sorry tale of Victoria’s Flora and Fauna Guarantee Act 1988

Twenty-five years ago this month, a proposal for an ambitious new law was introduced into the Victorian Parliament. The law, the Flora and Fauna Guarantee Act 1988, legislated to “guarantee” that all species of flora and fauna in Victoria would be allowed to “survive and retain their potential for evolutionary development in the wild”.

Twenty-five years on we are still waiting for the guarantee to be delivered.

You do not have to be a contract lawyer to know that the term “guarantee” is not one to be bandied about lightly. In passing the legislation Parliament was expressing a commitment that aligned with the Victorian public’s expectation that the protection and stewardship of our natural heritage ought to be taken very seriously.

The law broke new ground. It introduced various tools and mechanisms based on the need for real action protect flora and fauna. For example, the Act provided for “threatening processes” to be listed and designated for special attention, a reflection of the need to deal with causes and not just consequences.

Successive governments have failed to implement almost all of the key features of the legislation. An overarching Flora and Fauna Guarantee Strategy for all of Victoria? Hastily and belatedly cobbled together in 1996, a updated version prepared about five years ago seems to have disappeared. Designating critical habitat for threatened species? A potentially powerful conservation tool that has been used only once for a short period in 1996.

Perhaps the clearest example of neglect that has characterised the administration of the Act is the continuing failure to prepare “Action Statements”. Action Statements are the recovery plans that set out how to get species off threatened lists, which is the point of the threatened species laws such as the Flora and Fauna Guarantee.

The Auditor General, in reviewing the implementation of the Act in 2009, found serious failures in this obligation to prepare Action Statements, with no Action Statement in place for over half of the threatened species listed. In fact, the Auditor General reported, ignoring new listings, the back log in 2009 was such that at the then rate of preparing Action Statements the backlog would not be cleared for over twenty years.

The situation has continued to worsen. No new Action Statements have been released in recent years.

It’s easy and obvious in the circumstances say that the legislation is out of date. Review and improvement would be most welcome – in fact the failure to do this in the last twenty-five years is a demonstration of the lack of seriousness with which successive governments have approached biodiversity conservation in Victoria.

Much-needed reforms would include moving to a greater focus on ecosystems rather than individual species, as well as crafting a regulatory framework appropriate to rapid climate change.

The problem is that at the moment there is no commitment either to properly implement existing laws or to reviewing and improving the Act.

Current Victorian government policy, Environmental Partnerships strategy released in November last year, is to “prepare a road map to streamline the administration of the Flora and Fauna Guarantee Act”, a policy commitment that succeeds in being vague and non-committal and scary all at the same time.  The law is not being implemented now – how can “streamlining” possibly be the solution?

In case there is any doubt about the urgency of the issue, consider the implications of a change in Commonwealth government that is likely within the year. At the moment, protection under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 provides a safety net for some threatened species.

The future of this national-level protection is in doubt. Reducing direct Commonwealth involvement in biodiversity regulation is supported by both sides of politics federally. The Gillard government has already tried to wriggle its way out of responsibilities under these national environmental laws, an initiative now on hold following a concerted campaign by conservation groups.

The Abbott opposition has, however, promised that they will deliver and transfer responsibility for national environmental laws to the states, winding back decades of Commonwealth government involvement in biodiversity protection.

Very soon it is likely that State governments will be solely responsible for protecting our wildlife, flora and unique natural places. Now more than ever it’s time that the Victorian government took delivering on the guarantee seriously.

Here’s some links that will help you become informed about this important issue:

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