Environmental issues are important and often open for public consultation. This chapter focuses on planning laws, environmental impact assessments and pollution-control laws. Responsible authorities can impose conditions on a permit. The minister can intervene at various stages.

Contributor

Brendan Sydes, Bruce Lindsay and Bronya Lipski

Solicitors, Environmental Justice Australia

Nature protection laws

Last updated

1 July 2020

All the administrative systems and bodies of law discussed above are relevant to the protection of natural environments as well as built environments. The activity complained about might require planning permission, or an environmental impact assessment (EIA) or works approval. All of 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 EPBCAct, Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’), Wildlife Act 1975 (Vic) and the National Parks Act 1975 (Vic).

The need to obtain a planning permit to remove native vegetation (clause 52.17 under all Victorian planning schemes) is an important part of the framework of nature protection laws in Victoria (see www.environment.vic.gov.au/native-vegetation/native-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, on public land, but outside national parks or reserves and vulnerable to logging operations. We saw above that actions under the national system of regional forest agreements (RFAs) are exempt from EIA under the EPBC Act. Forestry operations are carried out under the Forests Act 1958 (Vic), the Conservation, Forests and Lands Act 1987 (Vic) and the plethora of regulations and management plans made under them.

RFAs are intended to establish a substitute conservation regime for forests in which timber harvesting (logging) occurs, with equivalent conservation outcomes to the EPBC Act (see Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178). If those activities do not occur in compliance with conservation rules and standards operating under the substitute regime, the exemption from the EPBC Act may be lost (see Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704).

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 decision-making – although such legal action is expensive and complicated. For more information about protesters’ rights, see Chapter 11.4: Community activism.

Reforms to the Flora and Fauna Guarantee Act

On 1 June 2020, amendments to the Flora and Fauna Guarantee Act 1988 (Vic) (‘FFG Act’) commenced. These are the most substantial changes made to the FFG Act since it was first enacted. 

The amendments update the FFG Act in some important ways:

  • revise and expand the objectives of the FFG Act; the objectives 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;
  • 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. At the time of writing (1 July 2020), new regulations have been made governing threatened species listing but regulation or guidance on other matters has not.

Back to
Rights, activism and fair treatment at work

Buy the chapter ‘Environmental law’