THREATENED SPECIES CONSERVATION BILL (No. 2)
Suspension of standing orders, by leave, agreed to.
Bill introduced and read a first time.
Second Reading
Ms ALLAN (Blacktown - Minister for the Environment) [10.46]: I move:
That this bill be now read a second time.
In 1865, John Gould introduced his study of the birds of Australia with the following words:
I wish to remind the reader that many of the passages detailing the occurrence of certain species have reference to my visit to the country [in the late 1830s]. It may be possible - and, indeed it is most likely - that . . . The noble bustard no longer stalks over the flats of the upper hunter, nor the emus feed and breed on the Liverpool plains as they did at that time. And if this be so, surely the Australians should at once bestir themselves to render protection to these and many other native birds: otherwise, very many of them, like the fine parrot of Norfolk Island, will soon become extinct.
History has shown that John Gould's concerns were well founded. Australia has the worst record of mammal extinction rates in the world and almost a quarter of the nation's 22,000 plant species are now classed as threatened. The situation in New South Wales is equally dismal: 130 years after Gould's warning we have not bestirred and we still do not have comprehensive threatened species legislation. It is past time to set things right. There are 234 species of fauna currently listed as under threat in this State. Some are found nowhere else in the world; others occur elsewhere in Australia - and usually are confronted with threats similar to those operating in New South Wales. Most contend with a host of threats, including habitat loss and fragmentation; habitat degradation; and the introduction of exotic species.
The conservation status of New South Wales' amazing and often unique plants is also alarming. When the national list of rare or threatened Australian plants - ROTAP - was last revised in 1988, there were 537 plants on the New South Wales list. Now, only seven years later, there are 770 plants listed by ROTAP as under threat in New South Wales. Quite apart from extinction, many species are reduced to small populations in extremely restricted areas. The brush-tailed rock wallaby, for example, was once abundant throughout the mountainous country of eastern New South Wales. However, it is now rare in much of its former range, and seems to have disappeared completely from much of New South Wales. This phenomenon is the first step on the road to eventual extinction and this type of evidence confirms that extinction is not a thing of the past. It is obvious that the system for protecting this State's threatened plants and animals has shortcomings.
The current legislation - the National Parks and Wildlife Act 1974 as amended by the Endangered Fauna (Interim Protection) Act 1991 - is restricted to endangered fauna and there is no effective protection for threatened plants, invertebrates or ecological communities. There is no systematic process for the protection of critical habitat for threatened species. Since the destruction or fragmentation of habitat is the main cause of species extinction and biodiversity loss, it is absolutely vital to conserve habitat and to properly consider the protection of what is known to be essential for species survival. The existing legislation also fails to recognise the importance of recovery planning and the control of threatening processes.
In other words, it does not seek to confront the problem and actively manage for species recovery and mitigation of the activities which are the engines of extinction. Having said that, I must also categorically state that without the Australian Labor Party's Endangered Fauna (Interim Protection) Act, things would be significantly worse. This interim legislation was only ever intended to be a stop-gap measure until sensible and comprehensive legislation was introduced. Unfortunately for this State's plants and animals, the previous Government's masterful inactivity turned that gap into a yawning chasm.
The coalition Government introduced a bill in 1993, the Endangered and Other Threatened Species Conservation Bill, with the stated intention of promoting the recovery of endangered species of flora and fauna and balancing the competing demands for land use and biodiversity conservation. The bill would have completely abandoned the licensing system introduced by the Endangered Fauna (Interim Protection) Act. It was to be replaced by amendments to the Environmental Planning and Assessment Act to provide that the effects of activities or developments on threatened species were taken into account in some nebulous way in the planning process. In addition, the coalition bill would have effectively done away with offences for the disturbance of habitat outside of critical habitat.
The bill was the subject of protracted consultation, and it is clear that the coalition had no real commitment to its own legislation. This is not surprising given that in any coalition government the most critically endangered species is a Liberal environment Minister. So, once again, the coalition
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fiddled, like Nero, while Rome burned. As honourable members are aware, the honourable member for Manly, Dr Macdonald, introduced his own Threatened Species Conservation Bill in October 1995. The Government acknowledges Dr Macdonald's longstanding commitment to threatened species conservation, but cannot support a bill which dissipates the conservation effort across countless low-risk issues at the expense of focusing on critical concerns for biodiversity conservation. As I have mentioned on other occasions, Dr Macdonald's bill fails to integrate species conservation into the planning system and relies, instead, on a totally separate licensing system that is divorced from the environmental assessment and development control process with which we are all familiar.
Furthermore, Dr Macdonald's bill ignores the undeniable fact that social and economic consequences must be taken into account in the decision-making process. His bill is inefficient, ineffective and unrealistic. The fact that the honourable member for Manly is well-meaning does not overcome these fatal flaws. This Government has been relentless in its commitment to comprehensive and workable threatened species legislation and consistent in its desire to consult extensively in the development of such legislation. In September last the Government sought to extend the Endangered Fauna (Interim Protection) Act 1991 until May next year. That proposal was made in order to allow an adequate period for public consultation in finalising new and comprehensive legislation to protect threatened species.
The Parliament, however, decided on that occasion to agree to an extension of the interim Act to the end of 1995 only. In the meantime intensive effort has gone into the development of new legislation and a detailed scheme was delineated. Inevitably, however, there has not been time available for full consultation with industry or with conservation interests. We knew that this would be the case. Having given a preliminary briefing on the new scheme to key stakeholders in recent days, it was obvious that both conservation and industry interests had concerns. Again we sought to prolong the operation of the interim legislation to maximise the scope for finding consensus. Obviously the Opposition has no interest in furthering community involvement since it has not been prepared to cooperate in the extension of the interim laws.
In these circumstances the Government has undertaken additional finetuning of the legislative scheme giving better recognition - where possible - to the concerns that had been raised with us. The bill now before the House reflects that process. The Government would have preferred a more cautious and inclusive process. We understand that, at the end of the day, saving species is far too important and far too difficult a task to be confronted by Government alone. Cooperative endeavour with the community is the way of the future. The dangers of this mad rush foisted on us by the uncaring and the irresponsible are self-evident. The coalition is being extremely hypocritical - they want this Government to pass legislation in a few short days when they refused to do it in seven years.
What then does the bill propose? It is important to emphasise what is actually meant by the term "threatened species." Under the Act, the term is used in a general sense and is taken to include two categories of risk: first, endangered species, namely, a species that is likely to become extinct in nature unless the factors threatening its survival or development cease; second, vulnerable species, a species that is likely to move into the endangered category in the near future if the causal factors continue to operate. A third category - presumed extinct - is also recognised. As well, if a presumed extinct species is rediscovered or a species new to science identified, that species will automatically and provisionally be deemed endangered. Recognising the shortcomings of the legislative alternatives, the Government has developed comprehensive legislation which affords proper protection for threatened species, uses the planning system when it is most appropriate to do so, but retains separate licensing where actions are likely to have a significant impact on threatened species or occur in declared critical habitat, but do not require approval under the Environmental Planning and Assessment Act.
The Government's bill represents a major step forward in regulatory reform. It will streamline existing procedures, allowing us to concentrate on areas which need urgent attention, such as recovery planning to ensure the long-term survival of species at risk. The bill also clearly recognises and responds to the hierarchy of risks. It does not treat vulnerable species, or indeed, even potentially vulnerable species, with the same level of scrutiny, concern or resources as endangered. This would be tantamount to a surgeon ignoring a severed artery in order to trim a patient's fingernails. It is also true to say that New South Wales is leading the way in integrating threatened species conservation so fully into the planning system. We have also confronted the difficult issue of trading off conservation benefits against social and economic consequences, and can give an assurance that adverse impact on economic activity will be minimised whilst giving effect to sensible conservation outcomes.
The legislation will cover all native plants and animals, including invertebrates and non-vascular plants and ecological communities which are eligible to be classified as threatened. It will not cover fish or marine plants, however, the Government is committed to amending the Fisheries Management Act 1994 in the near future to incorporate the relevant principles of the threatened species legislation. The inclusion of ecological communities is an important feature of the legislation. An ecological community is defined in the bill as an assemblage of species occupying a particular area. Traditionally, attention has been focused on
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individual species, and then principally on vertebrates, large, furred and cute, and flowering plants.
For the many ugly and unloved animals and plants, conservation of ecological communities is often an effective approach to their protection. In this regard, at least, we have progressed from Gould's world of 1865. Threatened species, endangered ecological communities, endangered populations and key threatening processes will be identified and regularly reviewed by a 10-member scientific committee comprising representatives from New South Wales tertiary institutions, the Commonwealth Scientific and Industrial Research Organisation, the Ecological Society of Australia, the Entomological Society of Australia, the Australian Museum, the Royal Botanic Gardens, a suitably qualified agricultural scientist and three government scientists.
The Minister will receive the committee's final determinations on listing and, subject to any review considered necessary by the Minister, will proceed to make formal listings. Essentially, the legislation will then provide for: first, the declaration and protection of critical habitat - critical habitat is defined as the area or areas known to be essential for the survival of endangered species, communities or populations; and second, the preparation of recovery plans. Recovery plans will outline the actions necessary for the recovery of individual species, communities and populations to a position of viability in the wild. This is a critical element of any effective threatened species legislation, particularly one like this scheme, built around outcomes other than a fetish for regulation at all cost. These plans will enable a very cost-effective and cooperative approach to rescuing species from extinction. The third one relates to the preparation of threat abatement plans to control key threatening processes.
Plans will address processes affecting more than one listed species-community or operating at a statewide or bioregional level, to be known as key threatening processes. This will be an effective and efficient means of managing a process, such as predation by the introduced European fox, which has had and is having a significant and wide-ranging impact on small mammals. The fourth relates to licensing of actions which do not require consent or approval under the Environmental Planning and Assessment Act but are likely to have a significant impact on threatened species or occur in declared critical habitat.
Licence applications will be assessed by the Director-General of National Parks and Wildlife. Before a licence can be issued, a species impact statement may need to be prepared in accordance with National Parks and Wildlife Service guidelines and any special requirements stipulated by the director-general. There will be a capacity for the director-general to vary the obligations to prepare an SIS or the contents of an SIS for activities such as routine or ancillary farm practices whose impact is negligible, within declared critical habitat. Applications for licences must be decided upon within 120 days of receiving an application of sufficient standard. If a decision is not made within this time period, or within such period as mutually agreed, the application will be deemed to have been approved.
The bill also provides an obligation to obtain the concurrence of the Director-General of the National Parks and Wildlife Service for actions requiring consent or approval under parts IV or V of the Environmental Planning and Assessment Act that will have a significant impact on endangered species, ecological communities or populations, or critical habitat. However, where a matter is determined by the Minister for Urban Affairs and Planning or another Minister, concurrence will be replaced by mandatory consultation with the Minister for the Environment before a decision is made by the relevant Minister. This provides a mechanism for the resolution of conflicting public interest requirements in the most appropriate way, but ensures that endangered species interests are fully considered. As an additional safeguard there will be a requirement that where the determining Minister does not adopt any recommendations made by the director-general through the consultation process with the Minister for the Environment the reasons for this must be made public.
The bill also provides for the imposition of severe penalties for offences. There is a maximum penalty for damaging critical habitat for endangered animals and endangered plants of $200,000 or two years imprisonment or both. The penalty for harming vulnerable species of animals or picking vulnerable plants is $50,000 or imprisonment for one year or both. The penalty for damaging habitat other than critical habitat is $100,000. Beginning with the central concept of habitat protection, I would point out that the bill prohibits the destruction or adverse modification of any area that has been declared as critical habitat, without an informed decision based on the impact of that action. Critical habitat will be declared at the discretion of the Minister for the Environment with the advice of the Director-General of the National Parks and Wildlife Service. The declaration process will provide for public involvement and the Minister must also have regard to its social and economic consequences.
To maximise certainty for development proponents, it will be possible to identify the existence of declared critical habitat early in the planning process, ideally during the preparation of local environmental studies or plans or regional environmental plans. Provision will also be made for the identification of activities which may be permitted in declared critical habitat areas. In most cases, the Director-General of the National Parks and Wildlife Service will have a concurrence role for actions in declared areas of critical habitat. It is important to note, however, that critical habitat means just that. It is not all habitat. Where an area
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is in fact critical to the survival of an endangered species, development proposals with adverse impact already encounter considerable hurdles for approval. A process to formally recognise that such an area is critical habitat is therefore in everyone's interests.
The legislation also requires the Minister for the Environment to consult other Ministers when declarations of critical habitat are being considered. As with other aspects of the legislative package, consultation is considered to be absolutely fundamental. As far as existing rights and interests are concerned, the Minister for the Environment will be required to consider the likely impact on landholders' existing uses in declaring land to be critical habitat. The Minister for the Environment may refuse to declare critical habitat on the basis of its social and economic consequences or the consequences on persons having an interest in or lawful uses of the land. The option of negotiating conservation agreements as provided for in the National Parks and Wildlife Act will be pursued in appropriate circumstances.
The Director-General of the National Parks and Wildlife Service will be responsible for preparing recovery plans for all endangered species. Ideally, plans will also be prepared for all vulnerable species. However, the resource implications of this are significant and it means that the director-general must have the discretion to make a decision on plan preparation for vulnerable species. There may also be situations where plans will be required for certain vulnerable species before work on all endangered species has been completed. In some cases, for example, a plan may sensibly and economically deal with a coherent group of species, some endangered and some vulnerable. It would be absurd to have to exclude the vulnerable species from a composite plan. Plans will usually provide information on species status, habitat requirements, principal threats, recovery objectives, recovery criteria and actions needed. Priority will normally be given to preparation of plans for species which are endangered nationally.
The relevant agencies will be consulted in the development of plans and approval of the Minister for each affected agency must be obtained before any action relating to their administration is included in a recovery plan. The bill states explicitly that the director-general must take socioeconomic factors into account in the recovery planning process, as does the Minister in deciding whether to approve a draft plan. Threatening processes are defined in the bill as those processes which have or may have the capability to threaten the survival or evolutionary development of any plant or animal species or ecological community. Key threatening processes will be listed by the scientific committee, but subject to ministerial review, and may be the subject of threat abatement plans, prepared on a priority basis by the Director-General of the National Parks and Wildlife Service.
Examples of key threatening processes may include habitat loss, fragmentation, competition, predation and habitat degradation by feral animals. Like recovery plans, threat abatement plans will consider socioeconomic consequences at both the draft and approval stages. The plans will not be strictly binding on authorities but every effort must be taken to implement measures in an approved threat abatement plan. The Minister for the Environment must be informed of any decision by an agency which is inconsistent with the requirements of a plan, and any disputes will be settled by the relevant Ministers or, if necessary, by the Premier. Recovery plans and threat abatement plans must be taken into account by consent or determining authorities and by the Director-General of the National Parks and Wildlife Service when deciding whether or not to issue a licence or to grant concurrence to an action which is likely to have a significant impact on threatened species.
As mentioned earlier, the legislation minimises the need for separate licensing and integrates the conservation of threatened species into the development control processes of the Environmental Planning and Assessment Act. In areas of declared critical habitat, an action requiring development consent under part IV of the Act or activity approval under part V will require a species impact statement. If the statement indicates that endangered species are involved, the following factors apply: first, where a matter is determined by the Minister for Urban Affairs and Planning or another Minister, it will be necessary to consult the Minister for the Environment before a decision is made. Where the director-general's advice is not accepted, the reasons must be provided. Otherwise, all actions impacting on declared critical habitat or on endangered species, communities or populations needing consent or approval under parts IV or V of the Environmental Planning and Assessment Act will require the concurrence of the Director-General of the National Parks and Wildlife Service.
Actions which require development consent or approval and are likely to have a significant impact on endangered species but do not occur within critical habitat will also need a species impact statement and will trigger the consultation or concurrence provisions I have just mentioned. However, concurrence provisions will not apply where a significant impact only affects vulnerable species. In those cases, consent or determining authorities will be required only to consult with the director-general. Actions which do not require consent or approval under the Environmental Planning and Assessment Act, but are likely to have a significant impact on threatened species - as listed in the legislation at the time - will require the issue of a licence by the Director-General of the National Parks and Wildlife Service to protect the applicants from prosecution for harming threatened species or their habitat.
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Except under the circumstances I described earlier, a licence cannot be issued unless a species impact statement has been prepared in accordance with published standards or guidelines and any special requirements of the director-general. The likelihood of significant impact on threatened species will be determined using a test which is prescribed in the bill. This formulation will ensure a high degree of predictability and rigour in determining the critical concept of significant impact. The legislation will enable the director-general to enter into voluntary conservation agreements and joint management arguments with public authorities to protect threatened species and communities. There will also be provision for the imposition of stop work orders and the making of interim protection orders to provide immediate protection in emergencies. These measures may not be imposed where the activity being carried out is one authorised by an EPA consent or approval or by a licence under the National Parks and Wildlife Act or State Emergency and Rescue Management Act. The maximum penalties for damage to declared critical habitat or for harming endangered animals or picking endangered plants without consent or approval or a licence will be $200,000 or two years imprisonment or both.
This is much tougher than the present system, where penalties are limited to taking or killing endangered fauna, $100,000 or two years imprisonment or both, or vulnerable and rare fauna, $20,000 or one year's imprisonment or both. In addition to the more serious offence of damaging declared critical habitat there will be a separate offence of damaging habitat of threatened species, in acknowledgment of the fact that habitat loss and fragmentation is a crucial factor in the extinction of species. The option of negotiating conservation agreements as provided for in the National Parks and Wildlife Act will be pursued in appropriate circumstances.
The bill continues the third party appeal rights, which are already provided in the Environmental Planning and Assessment Act and the National Parks and Wildlife Act. However, Olympics development and associated infrastructure will be exempt from third party rights claims as a matter of necessity. I also advise the House that the Government is committed to financial support for this initiative at a level appropriate to ensure its smooth administration and effective implementation. In the very limited time available to the Government to deal with this matter, I give an assurance that I and my colleagues will undertake further consultation with key interest groups. We will also continue to support the conservation agreement scheme as well as other relevant management assistance schemes throughout rural New South Wales to ensure that this Government meets its responsibilities as a responsible partner in these endeavours with the community.
The National Parks and Wildlife Service and other relevant government agencies will produce clear guidelines and offer whatever assistance possible in the implementation of the legislation. This legislation will be subject to a two-year review. Furthermore, the outcome of the review is to be tabled in each House of Parliament. So, more than two centuries after Europeans began to make their indelible mark on this unique country, let us begin a process of recovery and restoration. We do so in proper acknowledgment of the benefits brought to this State by our pioneers and with no desire to apportion blame for what has come to pass. Rather, this Government seeks only a commitment from across the community to pass on to future generations an environment and its natural heritage, at least as rich as that left to us. I commend the bill to the House.
Debate adjourned on motion by Mr Longley.