New responsibilities under reformed Flora and Fauna Guarantee Act

Following reforms in 2019, public authorities in Victoria will be subject to important new responsibilities from 1 June 2020, the date the reforms commence. 

The changes reinforce biodiversity protection as a responsibility that needs to be taken seriously across the whole of government, including importantly local government. 

The first significant change is an expanded and much clearer definition of “public authorities”. This now clearly extends to all government departments and entities (including state-owned corporations like VicForests) as well as local government. 

Under the new section 4B of the Act, all public authorities must now “give proper consideration to” the objectives of the Act, as well as Victoria’s Biodiversity Strategy, Action Statements and other determinations or plans under the Act. 

The new objectives in the Act referred to here (they are found in section 4) are updated and broad in their reach: 

(a) to guarantee that all taxa of Victorias flora and fauna, other than taxa specified in the Excluded List, can persist and improve in the wild and retain their capacity to adapt to environmental change; and 

(b) to prevent taxa and communities of flora and fauna from becoming threatened and to recover threatened taxa and communities so their conservation status improves; and 

(c) to protect, conserve, restore and enhance biodiversity, including— 

    (i) flora and fauna and their habitats; and 

    (ii) genetic diversity; and 

    (iii) ecological communities; and 

    (iv) ecological processes; and 

(d) to identify and mitigate the impacts of potentially threatening processes to address the important underlying causes of biodiversity decline; and 

(e) to ensure the use of biodiversity as a natural resource is ecologically sustainable; and 

(f) to identify and conserve areas of Victoria in respect of which critical habitat determinations are made 

While at first glance the obligation to “give proper consideration” to these objectives sounds like weasel words, it’s important to know that this language and the obligation on public authorities that it creates is drawn from Victoria’s Charter of Human Rights and Responsibilities.  In that context, the Victorian Supreme Court has made it very clear that the language means that while public authorities are not required to be overzealous or legalistic in their approach, they must demonstrably give human rights obligations serious attention, including adapting and updating their conduct and practices in accordance with them 

A similar obligation now applies to public authorities when it comes to the Victoria’s newly refreshed and legislated biodiversity objectives, and we’ll be urging the government to make sure that all public authorities are aware of and following these.

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