Thursday, 15 August 2019

The DEPUTY PRESIDENT (18:02): I have another message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Flora and Fauna Guarantee Act 1988 to promote Victoria’s biodiversity by establishing objectives and principles of the Act, imposing additional obligations to consider biodiversity in decision-making, improving transparency and accountability and making various other amendments to strengthen the Act and to make consequential amendments to other Acts, and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:03): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:03): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the ‘Charter’), I make this Statement of Compatibility with respect to the Flora and Fauna Guarantee Amendment Bill 2019.

In my opinion, the Flora and Fauna Guarantee Amendment Bill 2019, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Flora and Fauna Guarantee Amendment Bill 2019 (the Bill) amends the Flora and Fauna Guarantee Act 1988 (Principal Act) to promote Victoria’s biodiversity, enhance accountability and transparency, and deliver effective protection for native species and important habitats.

Most relevantly for the purposes of assessing compatibility with the Charter, the Bill provides for the application of critical habitat determinations and habitat conservation orders over any land in Victoria, the use of a register to record instruments issued under the Principal Act, and improvements to the compliance and enforcement of the Principal Act. This includes the expansion of inspection, seizure and evidence gathering powers of authorised officers, the introduction of infringeable offences, and increased penalties for breaches.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

• The human rights protected by the Charter that are relevant to the Bill are:

• The right to freedom of movement in section 12 of the Charter;

• The right to privacy and reputation in section 13 of the Charter;

• The right to public life in section 18 of the Charter;

• Cultural rights in section 19 of the Charter;

• Property rights in section 20 of the Charter; and

• The right to be presumed innocent in section 25(1) of the Charter.

For the reasons outlined below, in my opinion, the Bill is compatible with each of these rights.

Freedom of movement

Section 12 of the Charter provides for the right of every person within Victoria to move freely within Victoria and to enter and leave it and to have the freedom to choose where to live.

Critical habitats and habitat conservation orders

Clause 15 of the Bill substitutes section 20 of the Principal Act, which allows the Secretary to make critical habitat determinations. Limits on when an area may be declared to be critical habitat are in set out in new section 20(2).

Under new section 26, inserted by clause 20 of the Bill, the Minister may make a habitat conservation order for the purposes of conserving, protecting or managing any critical habitat (being an area determined under substituted section 20), or any area of Victoria that the Secretary proposes to determine as critical habitat but in respect of which a critical habitat determination has not been made. The Minister must not make such an order unless the Minister considers it is necessary to halt, prevent or repair damage that has occurred, is occurring, or is likely to occur to the critical habitat or proposed critical habitat, or to manage that critical habitat or proposed critical habitat to ensure its conservation or protection.

A habitat conservation order may (among other things) restrict or prohibit activities and the use or development of property within the critical habitat or proposed critical habitat. An order may also require that a person proposing to undertake an activity, land use or development obtain a permit from the Minister. Additionally, an order may also restrict or prohibit activities and the use or development of property within an area that is outside the critical habitat or proposed critical habitat if the activity, land use or development is likely to adversely affect the relevant habitat.

To the extent that a habitat conservation order may limit the freedom of movement of a person by imposing conditions that restrict or prohibit movement or actions within a relevant area, any such limitation is reasonable and justified within the meaning of section 7(2) of the Charter. This power is an appropriate management tool to ensure the protection of habitats which may be essential to the survival of threatened species. A habitat conservation order must not be made unless the Minister considers that the order is necessary to halt, prevent or repair damage that has occurred, is occurring, or is likely to occur to the critical habitat, or to manage the critical habitat to ensure its conservation or protection. New section 29 contains a process for providing notice of the making of such an order to relevant landholders, including the opportunity to provide submissions.

The Bill also provides a process by which a permit can be obtained for a particular use or activity in an area subject to a habitat conservation order. Additionally, under new section 36, a person can apply to the Victorian Civil and Administrative Tribunal for a review of a requirement or prohibition contained in a habitat conservation order that affects that person’s interests, a decision of the Minister under a habitat conservation order that affects the person’s interests or a decision of the Minister to suspend a licence, permit or authority of that person. Further, a person can apply to the Tribunal, under new section 37, for a declaration concerning the validity of such a requirement, prohibition or decision.

In my opinion, the inclusion of the above measures in the Bill means that any limit on the right to freedom of movement that occurs due to the imposition of a habitat conservation order will be a proportionate measure. I also consider that no less restrictive means are available that would sufficiently serve the protective purpose of the orders.

Accordingly, I consider that the Bill is compatible with the right to freedom of movement under section 12 of the Charter.

Privacy

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked. An interference with privacy will not be unlawful where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be arbitrary provided they are reasonable in the particular circumstances, and just and proportionate to the legitimate aim sought.

Habitat conservation orders

Section 13(a) protects the right not to have one’s home unlawfully or arbitrarily interfered with. It is possible that the creation of a habitat conservation order and associated restriction and conditions may interfere with a person’s home, where that home is located on land that was subject to such an order.

As discussed above, the habitat conservation orders serve an important purpose, and the restrictions imposed by such orders are proportionate to that objective. Additionally, review can be sort of the orders. For these reasons, any interference with privacy caused by the creation and/or operation of a habitat conservation order would not be arbitrary. Neither will such an order be unlawful, given that the provisions are clear and proportionate.

Entry without warrant by authorised officers

Clause 29 of the Bill amends authorised officers’ existing inspection and evidence gathering powers in section 57. Entry without consent or a warrant is only permitted for land, non-residential buildings and vehicles, and the powers of authorised officers are appropriately restricted to only permit seizure of any thing (including documents) where it is necessary to prevent its use in the contravention of the Principal Act and related instruments or to prevent its concealment, loss or destruction. Further, entry without consent or warrant may only occur at a reasonable time and by reasonable means. Given these protections, and the fact that there is no power to enter residential buildings, I consider that the power of entry without warrant in section 57, as amended by clause 29, does not limit the right to privacy.

Entry with warrant by authorised officers

Consistent with the current position under the Principal Act, a warrant must be obtained to enter a building that is occupied as a residence. Only things named or described in the warrant, or things that the authorised officer believes on reasonable grounds are connected to the offence specified in the warrant or another offence against the Principal Act or regulations, may be seized. The Bill provides that an authorised officer may only apply for a search warrant if the authorised officer believes on reasonable grounds that there is, or may be within the next 72 hours, on or in the building a particular thing that may be evidence of the commission of an offence against the Principal Act or the regulations.

In addition, the Bill inserts new provisions to ensure that a search warrant for residential premises is executed under appropriate circumstances. For example, new section 57C requires announcement prior to entry, unless the authorised officer or person assisting the officer believes on reasonable grounds that immediate entry to the building is required to ensure either the safety of any person, or that the effective execution of the search warrant is not frustrated.

The entry with warrant power accordingly also does not arbitrarily or unlawfully interfere with the right to privacy.

Inspection and evidence gathering powers

As well as powers of entry, authorised officers also have the power to seize any thing (including a document) found at the land, building or vehicle; examine or take copies of or take extracts from documents that are seized or produced to the officer; require samples to be given or take samples of any thing.

To the extent that any of these items contain personal information, these powers may result in an interference to privacy. However, these powers relate to regulating the Principal Act and protecting flora and fauna. Consequently, it is unlikely that an item seized would contain personal information of a kind that a person expects to remain private. Additionally, the powers can only be exercised where an authorised officer has lawfully exercised a power of entry which, as discussed above, are themselves compatible with the right to privacy. Accordingly, these powers do not limit the right to privacy.

Publication of enforceable undertakings and agreements with landowners

Clause 20 will insert new section 42 into the Principal Act, which provides that the Secretary must ensure that a register of critical habitat determinations and habitat conservation orders is kept and maintained, which must include ‘agreements with landowners’.

Clause 37 inserts new Division 3A into Part 6 of the Principal Act, creating a framework for enforceable undertakings. New section 62E provides that the Secretary may publicise the failure of a person to comply with a court order made under new section 62D in relation to an enforceable undertaking. New section 62I provides that the Secretary must maintain a register of enforceable undertakings which must be published on the Internet.

The publication of certain information on a register, and the publicising of a person’s failure to comply with a court order, engages but does not limit the right to privacy and reputation under the Charter.

Enforceable undertakings are voluntary. A person who enters into an undertaking with the Secretary would be aware of the framework in new Division 3A, including the enforcement and publication provisions, and so would know that details of the undertaking will be publicly available and that failure to comply with a court order may be publicised. Publication of a failure to comply with a court order may only occur after a person has failed to comply with the enforceable undertaking, a subsequent order of the Magistrates’ Court, and written notice from the Secretary under section 62E (within 14 days of being given the notice). A landowner who entered into agreement would also be aware that the agreement would be published. Public availability promotes transparency and accountability in relation to enforceable undertakings more broadly. Additionally, there is unlikely to be an expectation of privacy regarding the kind of information published by virtue of the operation of these provisions.

In my opinion, the publication of possibly personal information by way of the operation of the enforceable undertaking regime and the creation of a register of critical habitat determinations and conservation orders do not limit the right to privacy and reputation as they are neither unlawful nor arbitrary.

Accordingly, the Bill is compatible with the right to privacy under section 13 of the Charter.

Right to public life

Section 18(1) of the Charter provides that every person in Victoria has the right to participate in the conduct of public affairs.

Clause 9 amends section 8 of the Act which establishes the Scientific Advisory Committee. New subsection 8(3B) provides that a majority of members of the Committee must be scientists who are not employed under Part 3 of the Public Administration Act 2004. The amendment to section 8 may operate to restrict some public servants from being members of the Committee, and thus restrict the ability of such public servants to participate in public life through participating on the Committee. However, the restriction serves an important purpose of ensuring the objectivity of the Committee members. Additionally, at least four of the nine scientists appointed to the Committee can be public servants, so the restriction will not operate to prevent all public servants from possible appointment to the Committee.

Accordingly, any limitation on the right to public life under section 18 of the Charter is reasonable and justifiable.

Cultural rights

Section 19 of the Charter provides for the rights of Aboriginal persons to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The Bill maintains and makes amendments to offences in the Principal Act which prohibit the taking of listed flora and fish without approval, which on their face may be seen to restrict the rights of Aboriginal persons to access flora and fauna which have a connection to traditional laws and customs.

However, the Bill maintains the existing exemption at section 6A of the Principal Act that provides that where a traditional owner group entity has an agreement under Part 6 of the Traditional Owner Settlement Act 2010, any provision in the Principal Act that provides for an offence for carrying out an agreed activity (other than section 32) does not apply to a member of the traditional owner group who is bound by the agreement, and who is carrying out an agreed activity, to which that offence would apply, on land to which the agreement applies.

As outlined in relation to the freedom of movement above, the Bill provides for the application of critical habitat determinations and habitat conservation orders over any land in Victoria, which may restrict or prohibit activities and the use of property within an area. The offence of failing to comply with a habitat conservation order (section 32), is not exempted by section 6A and continues to apply to traditional owners carrying out agreed activities on land to which an agreement applies under Part 6 of the Traditional Owner Settlement Act 2010.

On their face, these powers may be seen to restrict the rights of Aboriginal persons to access natural resources which have a connection to traditional laws and customs.

However, the Bill will provide at new section 28 that, prior to making a habitat conservation order in relation to critical habitat that is within the area of land subject to an agreement under Part 6 of the Traditional Owner Settlement Act, the Minister must not make that order unless the Secretary has taken all reasonable steps to reach agreement with the relevant traditional owner group entity on alternative measures for the conservation, protection or management of the critical habitat.

Furthermore, clause 6 of the Bill provides for new decision making principles including the requirement that a decision, policy, program or process undertaken under the Principal Act gives proper consideration to the rights and interests of traditional owners by acknowledging the cultural and spiritual connections to land, biodiversity and resources through a relationship with country; by supporting participation in decision-making; and by facilitating access to biodiversity and providing opportunities for economic advancement.

Consequently, in applying critical habitat determinations and habitat conservation orders over land that may potentially restrict the cultural rights of Aboriginal persons the decision-maker will be required to give consideration to those rights and interests.

In my opinion the Act’s offences and application of critical habitat determinations and habitat conservation orders do not unjustifiably limit the rights of Aboriginal persons to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

Accordingly, the Bill is compatible with cultural rights under section 19 of the Charter.

Property rights

Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Expansion of inspection and evidence gathering powers of authorised officers

Clause 29 of the Bill amends authorised officers’ existing inspection and evidence gathering powers under section 57 of the Principal Act.

These amendments empower an authorised officer to seize any thing found at the land, non-residential buildings or vehicles for the purpose of preventing its use in the contravention of the Principal Act, regulations and specified instruments, or preventing the concealment, loss or destruction of the thing. An authorised officer may also take samples of any thing found at the land, building or vehicle in respect of which the authorised officer suspects that there has been a contravention of the Principal Act or specified instrument.

An authorised officer may only exercise these powers when doing so is necessary to investigate compliance with the Principal Act or relevant instruments. Further, under new section 57E, the authorised officer must provide a written receipt for the item seized and must take reasonable steps to return the item if the reason for its seizure no longer exists. As described above in relation to the right to privacy, the Bill strengthens the framework for obtaining and executing a search warrant for residential premises to ensure they are limited to appropriate circumstances. In my view, the powers of authorised officers are appropriately circumscribed to only permit seizure of items necessary to investigate compliance with the Principal Act, ensuring that the important conservation objectives of the Principal Act are protected.

New section 57I also provides for the disposal or destruction of seized flora or fauna by order of a court, if the court is satisfied that the person was not authorised to possess the flora or fauna, or of any other thing if the owner of the thing cannot be found.

Habitat conservation orders

As outlined in relation to the freedom of movement above, habitat conservation orders may prohibit or restrict land use and development within a critical habitat, proposed critical habitat, or outside the relevant habitat if the land use or development is likely to adversely affect the habitat.

To the extent that a habitat conservation order may apply to private property to limit a person’s property rights, any such limitation is reasonable and justified as this power is an appropriate management tool to ensure the protection of habitats essential to the survival of threatened species. Additionally, the Bill provides at new section 39 for compensation to be paid for financial loss suffered as a natural, direct and reasonable consequence of the making of the order where the order affects an existing use right under the Planning and Environment Act 1987 or an authority granted under another Act.

These provisions do not infringe the right to property because any deprivation of property that may occur as result of making a habitat conservation order is clearly provided for by law and will occur for a legitimate purpose, being to achieve important conservation objectives.

Accordingly, the Bill is compatible with the right to property under section 20 of the Charter.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. This right is relevant where a provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Evidentiary provisions relating to retention notices

New section 57H, inserted by clause 30 of the Bill, sets out evidentiary presumptions in relation to retention notices that apply in any proceedings under the Principal Act. An authorised officer may, in circumstances specified in new section 57G, issue a retention notice requiring a person to keep a thing, and not dispose of or sell it. New section 57H provides that if a thing specified in such a notice is no longer in the specified person’s possession, that is evidence that the person has not complied with the notice. The section further provides that if a thing is specified in a notice as being in the possession of a particular person that is evidence that the thing was in the possession of that person.

In my view, new section 57H will not lessen the burden of proof placed on the prosecution. The burden of proof remains on the prosecution to prove that the item subject to the retention order is no longer in a person’s possession, and that the retention order has not been complied with.

Accordingly, in my view, new section 57H does not limit the right to be presumed innocent under section 25(1) of the Charter.

Offences regarding restricted and protected flora

The Bill will include several new offences in the Act which contain exceptions. However, since the exceptions to the offences must be disproved by the prosecution in order for the relevant offence to be proved, the offences do not place an evidential onus on a defendant to raise one of the exceptions.

Clause 25 substitutes section 52 of the Principal Act and inserts new section 52A. Clause 22 substitutes section 47 of the Principal Act and inserts three new offences. These offences do not shift the burden of proof since the prosecution is required to prove all elements of the relevant offences, which includes proving that the exceptions in these offences do not apply.

Accordingly, the Bill is compatible with the right to be presumed innocent under section 25 of the Charter.

Hon. Gavin Jennings, MP

Special Minister of State

Minister for Priority Precincts

Minister for Aboriginal Affairs

Leader of the Government in the Legislative Council

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:03): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

This Bill strengthens and modernises the Flora and Fauna Guarantee Act 1988 (the Act), delivering on the Government’s commitment to review the Act. The Bill amends the Act to ensure that it is stronger and can more effectively protect Victoria’s biodiversity in the face of existing and emerging threats such as climate change. The reforms in this Bill were first introduced into Parliament on 23 May 2018 but lapsed when Parliament was prorogued before the election. This Bill reintroduces substantively the same reforms, consistent with the Government’s ongoing commitment to ensure Victoria’s biodiversity is healthy, valued and actively cared for.

Victoria’s natural environment is home to a special and unique blend of plants and animals. Many species and ecological communities only occur in this State. However, despite the best efforts of individuals, the community, non-government organisations and governments, Victorian native species continue to face significant pressures that threaten their survival.

The vulnerability of our flora and fauna is only likely to increase as climate change affects our environment.

In 1988 the Act established for the first time in legislation a clear commitment to the achievement of the conservation of our native species and was a landmark piece of conservation legislation. The Act was prepared in recognition by government that Victoria’s native species were in trouble and declining. The Act introduced ‘modern, efficient and effective management systems for the protection of the State’s native species, basic legal powers and a framework for public participation’ and, at the time, was transformative.

The Act created the framework for strategies and approaches that remain relevant today. For example, the Act was more than just endangered species legislation and placed importance on prevention, to ensure more species did not become threatened in the future. The Act emphasised the importance of cooperative approaches to biodiversity conservation and recognised that all government agencies and the community need to participate in the conservation effort. As such, much of the Act’s architecture is still fit for purpose. Victoria’s continued decline in biodiversity can in part be attributed to a lack of implementation of this Act, rather than to deficiencies in its structure.

In the 30 years it has been in operation, however, the Act has not been comprehensively reviewed, and in parts, no longer reflects contemporary international and national approaches to biodiversity conservation. This Bill is not a reinvention of the Act but seeks to modernise it and revive its use. Where the Act’s existing tools are still appropriate, this Bill seeks to encourage their effective use and to create incentives for positive conservation action.

The reforms in this Bill respect the aspiration of the original championing Act, but introduce contemporary practices in biodiversity management, regulation and government accountability.

The development of this Bill was informed by community consultation and in 2017, the Government released the Review of the Flora and Fauna Guarantee Act—Consultation Paper for eight weeks of public comment. The public consultation period attracted significant community interest. Two hundred and ten written submissions were received from a broad range of stakeholders, including industry, local government, environment groups, public authorities and individuals.

Since the introduction of the 2018 Bill, the Commissioner for Environmental Sustainability Victoria released the Victorian State of the Environment 2018 report. The report finds most biodiversity indicators are poor and trending downwards. Also released was the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (PIBES): Global assessment summary report on biodiversity and ecosystem services, which found similar trends occurring globally.

What is clear is that business as usual will not adequately address threats to Victoria’s biodiversity. That is why, during the past four years, the Victorian Government has provided more than $149 million for the protection of Victoria’s biodiversity, including for initiatives that deliver on ground environmental action. Coupled with Protecting Victoria’s Environment—Biodiversity 2037 and new native vegetation clearing regulations, this Bill will give Victoria a modern and effective approach to protecting Victoria’s biodiversity.

WHAT CHANGES WILL THE BILL MAKE?

Part 1—Preliminary

I now turn to the specific amendments which the Bill will make to the existing Parts of the Flora and Fauna Guarantee Act 1988.

Section 4—Objectives of the Act

Currently the Act contains a set of conservation management objectives. The scope of the objectives is broad: they relate to all indigenous flora and fauna in Victoria and not merely threatened species, as well as communities of flora and fauna, potentially threatening processes, and genetic diversity.

The objectives have been updated to place greater emphasis on prevention and restoration. The first objective [section 4(a)] guaranteeing the survival of all Victoria’s flora and fauna has been retained, with minor modernising amendments.

New objectives include:

• To prevent indigenous taxa and communities of flora and fauna from becoming threatened and to recover threatened taxa and communities so their conservation status improves;

• To identify and conserve areas of the State in respect of which critical habitat determinations are made.

New Section 4A—Principles of the Act

The Bill introduces a set of principles to guide the administration of the Act and direct decision makers to consider certain matters in exercising functions under the Act. They require that decision makers give proper consideration to the rights and interests of Traditional Owners, the potential impacts of climate change, public participation, supporting collaboration between government, the community and partner agencies, the precautionary principle and the best available information in the management of Victoria’s biodiversity.

New Section 4B—Minister and public authorities to give proper consideration to the objectives and instruments made under the Act.

The Act currently contains an obligation on public authorities to be administered so as to have regard to the flora and fauna conservation and management objectives (section 4(2)).

The proposed Bill will provide greater clarity as to what is required, with a new provision that specifies the relevant considerations, consistent with the existing objectives, as well as any instruments made under the Act such as the Biodiversity Strategy, critical habitat determinations, action statements and management plans.

The Bill will replace ‘have regard’ with ‘give proper consideration to’, which is reflected in other statutory obligations on public authorities, such as section 32 of the Charter of Human Rights and ResponsibilitiesAct 2006. The Bill clarifies the obligations of public authorities under the Act by specifying relevant considerations and provides tools to guide and support public authorities in fulfilling the duty. These tools include:

• Ministerial guidelines that can clarify the duty and define what is reasonably expected of public authorities when considering the obligations under the Act;

• public authority management agreements which can combine a public authority’s biodiversity obligations under the Act into a single instrument, including permit requirements and obligations under section 4B;

• powers for the Minister to request information from a public authority if there are concerns regarding the authority’s ability to fulfil their duty.

Overall, the duty strengthens government leadership and accountability by encouraging consideration of biodiversity across government and by clarifying the existing requirement for public authorities to have regard to the objectives of the Act.

Part 2—Administration

Minor amendments have been proposed in the Part 2 of the Act, which relates to Administration. They include updating terminology introduced in the objectives and including references under the functions of the Secretary to the newly created principles.

The membership of the Scientific Advisory Committee has increased from five members to a minimum of seven and a maximum of nine members. References to the Conservation Advisory Committee have been removed, as it has not been established for over 20 years.

Part 3—Listing

The Bill proposes to amend the Act to give effect to the Intergovernmental Memorandum of Understanding agreement on a national common assessment method for listing of threatened species and communities. This Bill does not change the Act’s current approach to listing threatened communities.

Under the common assessment method, Victoria will manage a single list of threatened species in threat categories consistent with the Commonwealth Government and other States and Territories. Eligibility will be assessed initially on the basis of extinction risk in Australia. However, eligibility can be assessed on the basis of risk of extinction in Victoria in suitable circumstances.

Provided that the Scientific Advisory Committee has had input into the process, assessments conducted by other jurisdictions, in accordance with the common assessment method, can bypass the need for a preliminary recommendation and the Scientific Advisory Committee can proceed to make a final recommendation.

In order to maintain and ensure government accountability, a new provision has been created to ensure the Minister must, after any change to the threatened or processes list, ensure an up-to-date consolidated version of the list is published on the Department’s website as soon as practicable and that the lists are reviewed at intervals of no longer than 5 years.

Part 4—Management processes

The Bill maintains the Act’s requirement to prepare a Biodiversity Strategy which establishes proposals for achieving the objectives of the Act. The Bill provides that the existing Biodiversity Plan, Protecting Victoria’s Environment—Biodiversity 2037 will be taken to be the first Biodiversity Strategy. The Bill adds the requirement for the Strategy to contain targets to measure the achievement of the objectives and introduces a new framework for monitoring and evaluating implementation, which embeds key components of the existing plan into the Act. The Bill inserts a new obligation on the Commissioner for Environmental Sustainability to report on the progress of a Biodiversity Strategy in achieving its proposals and targets every five years and makes consequential amendments to the Commissioner for Environmental Sustainability Act 2003 to reflect this obligation.

The Bill maintains the Act’s obligation on the Secretary to prepare an action statement for every listed species, community or potentially threating process as soon as possible after it is listed.

The Bill also retains the Secretary’s power to determine that an area is critical habitat. Greater participation will be provided to landowners affected by determinations, underpinned by proportionate regulatory protection for these areas. The Bill inserts a new definition of critical habitat which clarifies and expands upon the current Act’s definition. Under the current Act, the Secretary may determine that the whole or any part or parts of the habitat of any taxon or community of flora or fauna is critical to the survival of that taxon or community. Establishing that any particular area of a taxon’s habitat is critical to its survival is scientifically challenging.

The Bill’s new definition of critical habitat includes any area that significantly contributes to the conservation in Victoria of a listed taxon or community of flora or fauna and includes an inclusive list of factors which may contribute to an area’s significance.

Critical habitats may:

• contain habitat that makes a significant contribution to the conservation in the State of any species or ecological communities listed as threatened under the Act, or is in the process of being listed as threatened under the Act (a preliminary recommendation must be made by the Scientific Advisory Committee before it is eligible); or

• support ecological processes or ecological integrity that makes a significant contribution to the conservation in the State of any species or ecological communities listed as threatened under the Act.

The Bill gives a greater role to the Scientific Advisory Committee in critical habitat determinations. The Scientific Advisory Committee may make a recommendation to the Secretary to make a critical habitat determination. In preparing a critical habitat determination, the Secretary must consult the Scientific Advisory Committee. The Secretary must give reasons to the Scientific Advisory Committee for a decision to propose—or not propose—a critical habitat determination following a recommendation.

Once a critical habitat determination has been made, the Secretary must take all reasonable steps to enter into agreements with affected landowners or public authorities.

The ability to prepare more detailed management plans for species, communities or potentially threatening processes that require particular attention will be maintained. A management plan must set out:

• the way in which the objectives are to be implemented or promoted for the benefit of that species or community or the management of that threatening process; and

• how the effectiveness of management activities will be assessed; and

• the date by which the management plan is recommended for review by the Secretary.

Circumstances in which a management plan must be prepared will be set out in Ministerial guidelines. Publication of a draft plan and public consultation will continue to apply to the making of management plans.

Part 5—Conservation and control measures

Under the current Act, critical habitat can be protected by the making of an Interim Conservation Order. The Bill proposes that an interim conservation order may have effect beyond the existing two-year limit, consistent with similar powers in New South Wales and Western Australia. The proposed new name for the order—‘habitat conservation order’—reflects this move to longer term management.

The Bill requires the Minister to consider whether to make a habitat conservation order within 2 years of the making of a critical habitat determination in relation to critically endangered flora or fauna, or communities of flora or fauna. The Minister must not make the order unless it is necessary to:

• halt, prevent or repair damage to the critical habitat or proposed critical habitat; or

• manage the critical habitat or proposed critical habitat to ensure its conservation or protection.

Consistent with the current Act, the Minister may suspend a licence, permit or other authority issued under any other Act that permits the holder of the licence, permit or authority to act in contravention of a habitat conservation order.

Habitat Conservation Orders may provide for:

• the conservation, protection or management of flora, fauna, land or water within an area of critical habitat or proposed critical habitat;

• a requirement for any person proposing to undertake any activity, land use or development within the critical habitat to obtain a permit from the Minister;

• a power to enable the Secretary to undertake any actions or works to conserve, protect or manage the critical habitat or proposed critical habitat;

• a requirement to repair any damage to the critical habitat or proposed critical habitat that has occurred since notice of the critical habitat or proposed critical habitat was given;

• similar powers in respect of an area that is outside the critical habitat or proposed critical habitat without which actions are likely to adversely affect the critical habitat.

Compensation will be available to a person who has an existing right under the Planning and Environment Act 1987 or an authority under another Act, and who is affected by a habitat conservation order, or a person with a licence, permit or other authority which has been suspended by the Minister. A person who has been affected by an order may also appeal to the Victorian Civil and Administrative Tribunal for review.

Consultation and notice provisions will continue to apply to the making of orders.

The Act continues to protect listed species and members of ecological communities and prohibit activities impacting on protected taxa without approval. Strict liability offences have been created to enable enforcement using infringement notices in future.

The current Act enables flora that are not listed as threatened to be declared to be protected by order of the Governor in Council. This power has been used to manage flora at risk from commercial and personal use. Under the current Act, flora declared protected in this way are covered by the same offence as threatened flora. As a consequence, the same approval requirements apply to public works for non-threatened flora and threatened flora. With respect to non-threatened flora, this duplicates the role of the native vegetation clearing controls in the Victorian Planning Provisions.

The Bill focusses the regulation of common, non-threatened flora on higher risk activities such as commercial harvesting and removes the existing overlap with native vegetation clearing controls. In order to facilitate this, the current list of protected flora will be reviewed. The Bill introduces a new “restricted use” category, which will apply to flora that are not listed as threatened, but may be at risk if commercial or personal use is not sustainably managed. Protection of threatened flora is retained.

The Bill inserts a new exemption from the need for a permit to take protected flora for public authorities acting in accordance with a public authority management agreement under the Act. This can bring a public authority’s flora and fauna obligations under the Act (including its duty under section 4B) into one instrument, removing the need for individual approvals and significantly reducing regulatory burden, provided equivalent or improved ecological outcomes are achieved.

The Bill maintains the Act’s exemption for taking protected flora from private land, for non-commercial purposes, and will clarify that private land excludes land owned by or vested in a public authority (consistent with the existing protected flora order of the Governor-in-Council).

Part 6—General

The current Act has been challenging to enforce. It lacks a range of enforcement tools that enable a tiered response based on the severity of the offence. The enforcement provisions, powers of authorised officers and penalties are out of date and do not match related legislation in Victoria and interstate.

The Bill increases penalties so the Act provides an effective deterrent to breaches and is brought in line with other legislation in Victoria. The penalty for a number of offences will increase from a maximum of 50 penalty units to 240 penalty units, in line with related legislation such as the Wildlife Act 1975. Higher penalties will apply for body corporates. The Bill also strengthens the powers of authorised officers and introduces an enforceable undertaking regime.

These amendments aim to bring the Act in line with other legislation in Victoria and with best practice enforcement frameworks. They will provide an effective deterrent to breaches of the Act.

Conclusion

In summary, this Bill reaffirms the Victorian Government’s commitment to guarantee the persistence of Victoria’s flora and fauna. It brings the Act in line with international best practice and enables greater protection for critical habitats. It re-establishes a modern framework for biodiversity protection and management in Victoria, supported by strong enforcement structures.

I commend the Bill to the house.

 Mr ONDARCHIE (Northern Metropolitan) (18:04): I move, on behalf of my colleague Ms Wooldridge:

That the debate on this matter be adjourned for one week.

Motion agreed to and debate adjourned for one week.