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Biodiversity: Regulatory Frameworks

Biodiversity: Regulatory Frameworks

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No 03/2010 by Holly Park


Biological diversity, or biodiversity, is the variety of life on Earth. There are currently almost two million species described on Earth, but it is estimated that the total number of global species is closer to 13 million. Australia is a ’mega diverse’ country, possessing a rich and unique biodiversity. The majority of Australia’s biodiversity is endemic, existing only in Australia. Biodiversity is in serious decline at a global, national and State level. 2010 has been declared the United Nations Year of Biodiversity to highlight the importance of biodiversity and to generate action to halt the biodiversity decline. [1]


In 1992, in response to an alarming rate of species extinctions, the United Nations (UN) Convention on Biological Diversity (CBD) was opened for signature. The Convention received wide global acceptance and was ratified by Australia on 18 June 1993. The CBD has three principle objectives: to conserve biological diversity; to use biological diversity in a sustainable fashion; and to share the benefits of biological diversity fairly and equitably. The Convention is expressed in broad goals and qualified commitments rather than specific binding obligations. It requires member states to develop national strategies and programs for the conservation and sustainable use of biodiversity ‘in accordance with its particular conditions and capabilities’. Parties to the Convention commit to establish a national system of protected areas and to consider the conservation and sustainable use of biodiversity in national decision making. [2.1]

In response to an unprecedented increasing rate of biodiversity loss, the parties to the CBD developed a Strategic Plan in 2002, to guide further implementation of the Convention. The Plan’s mission, known as the 2010 Target, states:

      The parties commit themselves to a more effective and coherent implementation of the three objectives of the Convention, to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on earth.

In 2004, the Conference of Parties to the CBD established more specific goals and targets to clarify the 2010 Target.

Despite the wide international commitment to the CBD and the 2010 Target, the UN has recently acknowledged that parties to the CBD have failed to meet the 2010 Target and that global biodiversity continues to be lost at an unprecedented rate. The Conference of Parties to the CBD is expected to adopt an updated strategic plan in October 2010, to replace the 2010 Target, which is likely to incorporate national biodiversity targets. [2.2]


Historically in Australia, biodiversity conservation at a national level was generally confined to legislation and policies that dealt specifically with protected areas, protected species and environmental assessment. The national approach to biodiversity conservation broadened significantly following the 1992 CBD and the 1992 Intergovernmental Agreement on the Environment, which outlined national and State responsibilities in relation to environmental protection. [3]

In 1996, the National Strategy for the Conservation of Australia’s Biological Diversity was endorsed by Australian Governments as the framework for biodiversity conservation in Australia. [3.1] The National Strategy was recently reviewed and a new draft strategy publicly exhibited. A large number of submissions were received on the draft strategy from a diverse range of stakeholders. [3.2]

In 1999, the Environment Protection and Biodiversity Conservation Act (EPBC Act) was enacted which significantly broadened the Commonwealth Government’s role in relation to biodiversity. The Act was promoted by the Government as landmark environmental reform. The Act gives the Commonwealth Government responsibility for matters of national environmental significance and for actions undertaken by the Commonwealth or actions on Commonwealth land. [3.3] An independent, statutory review of the EPBC Act has recently been released. The review made 71 recommendations to improve and modernise the Act. The Government has yet to formally respond to the Review, however it has indicated that it believes two of the Review’s recommendations to be unnecessary. [3.4]

Protected areas have been described as Australia’s premier investment in biodiversity conservation. An integrated national approach to protected areas is promoted through the National Reserve System and the National Representative System of Marine Protected Areas programs. They aim to establish a comprehensive, adequate and representative network of protected areas across Australian land and water to conserve biodiversity. The National Reserve System consists of over 9000 terrestrial protected areas, covering 89 million hectares or more than 11% of the country. The National Reserve System Strategy 2009-2030 was recently released by the Commonwealth Government. The Strategy commits to increasing the area of the terrestrial reserve system by 25% by 2013. [3.5] According to the most recently available data, the national marine protected areas system consists of 200 reserves and covers an area of 64 000 hectares. [3.5]

There is a range of other Commonwealth Government legislation, policies and programs that address biodiversity, including: Regional Forest Agreements, Caring for Country and Australia’s Native Vegetation Framework. [3.6]

New South Wales

The NSW Biodiversity Strategy was introduced in 1999 to provide the framework for biodiversity conservation in NSW. It is currently being revised to guide biodiversity management in the State over the next twenty years. The revised strategy will likely contain statewide natural resource targets for biodiversity and water, which are also included as targets under the State Plan. The draft strategy also proposes the inclusion of short, medium and long term goals for biodiversity conservation. [4.1]

Publicly owned protected areas, in the form of national parks and reserves, have been the cornerstone of biodiversity conservation in NSW for many years. NSW

has a long history of national parks, with Sydney’s Royal National Park established in 1879 as Australia’s first national park and the second national park in the world. The NSW terrestrial reserve system consists of 789 protected areas, covering 6.7 million hectares, or 8.4% of the total land area of NSW. Since 2006, there has been a 3.5% increase in the area of the terrestrial NSW reserve system. The Government recently proposed the creation of a new national park, the River Red Gums National Park in the Riverina region of NSW, which is the subject of a Bill currently before Parliament. [4.2]

The coastal fringe of NSW is generally well protected in the terrestrial reserve system compared to the central and western parts of the State. There are various methods of evaluating the effectiveness of the NSW reserve system at conserving biodiversity. Two common methods are: the percentage of each bioregion that is protected in the reserve system; and progress towards the establishment of a comprehensive, adequate and representative reserve system. [4.2]

Marine protected areas, particularly sanctuary (no-take) zones, are the key component of marine biodiversity conservation in NSW. There are currently 6 marine parks in NSW, covering an extent of 345 000 hectares or 34% of waters within NSW jurisdiction. Sanctuary zones, in which fishing is completely prohibited, make up 18% of marine parks, or 6.5% of total NSW marine jurisdiction. [4.3]

In recent years there has been an increased focus on voluntary conservation on private land. Programs such as the Conservation Partners Program encourage community participation in biodiversity conservation. The establishment of private conservation reserves, managed by non government organisations, is also becoming increasingly common in Australia and NSW. [4.4 and 3.7]

The Threatened Species Conservation Act (NSW) (TSC Act) was enacted in 1995 to conserve threatened species, populations and ecological communities. The TSC Act interacts closely with the Environmental Planning and Assessment Act 1979 (NSW) which integrates threatened species requirements into the planning framework. The TSC Act provides for the listing of threatened species, populations and ecological communities and the declaration of critical habitat. It also requires the preparation of recovery plans and threat abatement plans. In 2004, amendments to the Act introduced the requirement to develop a threatened species priorities action statement. This is indicative of a shift in focus from the recovery of individual threatened species to a more strategic focus on the protection of communities and habitats. [4.5]

The Environmental Planning and Assessment Act 1979 (EP&A Act) regulates planning in NSW and provides a framework within which other pieces of legislation and policy operate to address biodiversity. The key pieces of legislation are the Threatened Species Conservation Act 1995 and the Native Vegetation Act 2003. The operation of the planning system at both a strategic and development assessment level has the potential to significantly impact on biodiversity conservation. At a strategic planning level, a range of planning instruments can impact on biodiversity, including local environment plans, development control plans and State environmental planning policies. Biodiversity certification was introduced in the 2004 amendments to the TSC Act. This enables the Minister to ‘biodiversity certify’ a planning instrument, bringing the biodiversity assessment forward to the strategic planning phase and removing the requirement to undertake threatened species assessment during the development assessment process. [4.6]

The EP&A Act generally requires environmental impact assessment to be undertaken before the proposal for a development is determined. If a development under Part 4 or Part 5 of the EP&A Act is likely to have a significant effect on threatened species, or is on land that is critical habitat, a species impact statement must also be undertaken. [4.6]

In late 2006 the NSW Government introduced the Biodiversity Banking and Offsets Scheme (BioBanking). BioBanking is a market based approach to conserving biodiversity through the planning process. Developers can opt to use BioBanking to offset the impacts of their development by purchasing biodiversity credits, generated on a BioBank site, as an alternative to the traditional threatened species regime under the EP&A Act. The BioBanking scheme commenced in 2008 and the first BioBank agreement was recently entered into between the NSW Government and a private landholder. While the subject of much debate, the effectiveness of BioBanking in conserving biodiversity remains to be seen. [4.6]

The Native Vegetation Act 2003 was introduced to implement the Government’s commitment to end broadscale clearing. In accordance with the Act, broadscale clearing is not permissible unless it improves or maintains environmental outcomes. The first five yearly statutory review of the Native Vegetation Act was completed late last year. The review found that the objectives of the Act remain valid and no fundamental changes to the Act are necessary. However, it noted that there had been calls for broader reform to be considered in the longer term. [4.6]

Despite the wide international commitment to the CBD and the 2010 Target and the legislation, policy and programs addressing biodiversity at both a Commonwealth and NSW level in Australia, biodiversity continues to be in serious decline at a State, national and international level.