Reforms to Victoria’s Flora and Fauna Guarantee Act 1988 passed the Victorian Parliament on 29 August 2019.

We have long advocated for reform of our key biodiversity protection law, the Flora and Fauna Guarantee Act 1988.

Back in 2012, we published our report “Where’s the Guarantee?” reviewing the Act and its implementation.  Our report followed a damning review by the Auditor General in 2009 which found that successive Victorian governments had all but abandoned implementing key parts of the Act.

We concluded that nothing had changed since that review, finding that “the FFG Act remains very poorly implemented, with many of the legal measures to protect flora and fauna never used. Fewer than half of the 675 threatened species listed under the FFG Act have recovery Action Statements prepared, despite this being a mandatory requirement of the FFG Act, and only one new Action Statement has been developed in the past year.”

The FFG Act is Victoria’s threatened species legislation. It provides a framework for listing threatened species and threatening processes, and for conservation tools such as “Action Statements” (recovery plans).

The Act was groundbreaking when it was introduced in 1988 but the combination of a failure to keep the legislation up to date and to implement it properly means that it is no longer up to the task of protecting our native plants and wildlife as the Victorian community expects.

Reform of the Act is overdue and welcome but a key test is whether the reforms that the Victorian government has developed go far enough to address the extinction crisis.

Our position has been that far-reaching reform is required. Instead, we’ve ended up with something far less ambitious – the words of Minister D’Ambrosio in introducing the Bill to Parliament:  “This Bill is not a reinvention of the Act but seeks to modernise it and revive its use.”

So now it’s time to get on with making sure that the amended FFG Act is implemented and delivers on its promise.  While we believe that the current Bill could go much further in securing a future for Victoria’s threatened plants and animals, the reforms proposed will provide a foundation for significant improvements if they are thoroughly implemented.

Key reforms proposed introduced by the amendments

Important amendments are:

  • An updated and more comprehensive statement of objectives and principles to guide biodiversity conservation in Victoria. This includes maintaining the “guarantee”, an important legislative statement of the aspiration for biodiversity conservation in Victoria.

“to guarantee that all taxa of Victoria’s flora and fauna…  can persist and improve in the wild and retain their capacity to adapt to environmental change”

  • Recognition of the rights and interests of indigenous people.
  • A requirement for all “public authorities” in Victoria to “give proper consideration to” the Act’s principles, and plans developed under the Act.
  • An up to date threatened species list based on nationally consistent criteria that draw on international guidelines.
  • A new and more flexible approach to the declaration of “critical habitat”, a key conservation tool that has not been used under the current Act.
  • A legislative framework for Victoria’s Biodiversity Strategy, including 5 yearly review by the Commissioner for Environmental Sustainability.
  • Revised and updated provisions in relation to Management Plans, Habitat Conservation Orders, protected flora and modernised enforcement mechanisms.

Where the Bill falls short

Important conservation mechanisms under the current 1988 Act such as critical habitat determinations and conservation orders are never used and the reforms do nothing to fix this. There are still key parts of the Act where the conservation tools available remain optional despite the threat of extinction – whether threatened species are protected remains at the discretion of the Department or Minister.

The lack of obligations to actually protect threatened species in the current reforms mean that this situation could continue unless there is the political commitment, cultural change in the administration of the Act and funding necessary to use the tools available.

What’s next

Despite the shortcomings outlined above, the Bill is a modest step forward and a useful modernisation of the legislation. The key test will be at implementation.

Given the need to urgently address the critical situation faced by Victoria’s threatened species, there needs to be a renewed focus on ensuring that the implementation of the Flora and Fauna Guarantee Act 1988 meets the community’s expectations of strong and effective biodiversity conservation laws and reflects what credible science says is required to protect our state’s threatened species.

Implementation of the reforms over the next 12 to 24 months, and funding commensurate to the challenge faced will be key tests of whether the Victorian government is serious about meeting the challenge of the state’s declining biodiversity.

In our view, the key test for the implementation of the reforms will be the development of revised lists of threatened species, the rollout of the new obligation on public authorities to give “proper consideration” to biodiversity conservation, and whether the Department develops implements a program to identify and designate critical habitat using the Act’s new provisions.

Use it or lose it – unless these changes are implemented we’ll simply end up in the same situation again – laws good on paper but weak in practice because they’re not utilised.

Thank you to everyone who has joined the call for reform of the Act, and joined with us to push for changes.

– Brendan Sydes, Lawyer and CEO, EJA.