Changes to Commonwealth-listed threatened species: what’s next for Australia’s threatened species laws

An alarming trend for Australia’s native species and biodiversity is the increasing number of Commonwealth listed threatened flora and fauna and the upgrade of their conservation status to ‘endangered’. Part 1 of this series considered the implications of listing changes on project approval and assessments under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).  

This Insight explores changes to state legislation as a result of the change to the Koala species listing at a federal level and what might be next for the regulation of threatened species in Australia.  

With National Threatened Species Day on 7 September, it is an apt time to reflect on the status of Australia’s threatened species. Recent reports confirm that Australia’s biodiversity loss continues to increase at alarming rates and iconic Australian animals, such as the Koala, are under serious threat.  

Biodiversity loss should be a serious concern for all, including corporations, given the heavy reliance on the ecosystem services provided by biodiversity (see our Insight Top 5 reasons Australian corporations should act on biodiversity loss and management). 

Policy response

With the continuing threats to Australia’s biodiversity we are likely to see further policy discussion on the adequacy of Australia’s threatened species laws, including in relation to project assessments and approvals. 

The release of the 2021 Australia State of the Environment Report has already triggered policy announcements on this issue, including ‘once in a generation’ environmental law reforms.  At the press conference for the release of the report, the Federal Minister for the Environment and Water, Tanya Plibersek, announced a full response by the end of 2022 to Professor Graeme Samuel’s Final Report of the Independent Review of the EPBC Act, released in October 2020 (Samuel Report). That report concluded that the EPBC Act was ineffective and failed to protect matters of national environmental significance, such as threatened species and threatened ecological communities. 

In addition to a response to the Samuel Report, the Minister indicated that future reforms to Australia’s environment laws would likely take the form of the recommendations made in the Samuel Report. This is a significant difference to the previous Federal Government which only responded to parts of the Samuel Report, raising concerns about whether that response was actually consistent with the recommendations outlined in the Samuels Report as discussed in our Insight Do new draft EPBC National Environmental Standards ignore Independent Review of EPBC Act recommendations?

The Minister also announced a ‘30-30-30’ target to protect Australia’s national estate. Specifically, the target is for 30% of Australia’s land and 30% of Australia’s waters to be protected by 2030. In this regard, the Minister made the point that the target is not just about expanding protected areas but also increasing the standard of protection.

These announcements were in addition to the policy position taken by the Australian Labour Party at the last federal election to:

• establish an independent environmental protection agency;
  
  
• provide an additional $224.5 million to establish a ‘Saving Native Species Program’ and to fund specific threatened species projects; and
  
  
• invest in reef preservation and restoration to the amount of almost $1.2 billion by 2030. 

The Federal Government has also recently announced its intention to establish a voluntary national biodiversity market, which would be largely administered by the Clean Energy Regulator and operate in parallel with the carbon market. The Federal Department of Climate Change, Energy, the Environment and Water is currently undertaking consultation on the foundational elements of the proposed market, which include eligible biodiversity projects, agreed protocols, biodiversity certificates and a compliance and assurance framework. 

For further detail and analysis on the government’s response to the 2021 State of the Environment Report, see our Insight ‘State of the Environment Report 2021: key findings and takeaways for Australian businesses’.

Changes to Koala conservation status in Queensland, NSW and the ACT

One area where legislative amendment is frequently taking place, in response to biodiversity loss, is changes to the listing and classification of threatened species and endangered ecological communities.  

In February 2022, the threatened species listing under the EPBC Act for Koalas in Queensland, NSW and the ACT was upgraded from ‘vulnerable’ to ‘endangered’. Since that time, a further nine fauna species and three flora species have been either included on the EPBC Act’s Threatened Species List or had their conservation status upgraded. Three new ecologically endangered communities have also been included on the EPBC Act’s Threatened Ecological Communities List. The 2021 State of the Environment Report concluded that these listings will continue to grow substantially in coming years. 

Queensland, NSW and the ACT all have their own laws relating to threatened species such as Koalas. The decision to upgrade the status of Koalas on the federal threatened species list does not necessarily mean that Queensland, NSW and the ACT must, or would, update their respective threatened species laws and lists in response.  

Unsurprisingly, however, Queensland and NSW have followed in the Commonwealth’s footsteps and upgraded the conservation status of the Koala to endangered under their threatened species laws. 

The main effect of this change in Queensland has been that the ‘Queensland Environmental Offsets Policy’ has been updated to reflect the upgrade of the Koala’s conservation status.  Environmental offsets may be required as a condition of approval of a project where, following consideration of avoidance and mitigation measures, a prescribed activity remains likely to result in a significant residual impact on a ‘prescribed environmental matter’, which includes endangered wildlife such as the Koala. 

In NSW, the main consequences of the change in the State’s conservation status is that planning authorities will be required to assess the impacts of development having regard to the status of the Koala as ‘endangered’ under the Environmental Planning and Assessment Act 1979 (NSW).  Development which, if assessed on the basis that the Koala is a ‘vulnerable’ threatened species, may not have triggered the ‘significant impact test’ may now trigger that test and require further assessment and/or mitigation.  

The ACT has not upgraded the status of the Koala as ‘endangered’ and is currently still classified as ‘vulnerable’ under the Nature Conservation Threatened Native Species List 2020 (ACT). No announcements have been made by the ACT Government as to whether it will amend its legislation to upgrade the status of the Koala to ‘endangered’ to reflect the federal government’s conservation status.   

Summary

These threatened species policy announcements and changes to the threatened species lists of different states indicate that more intensive threatened species regulation is likely to remain in the spotlight for the foreseeable future in Australia. This is particularly so when considered with upcoming conferences and key reports on biodiversity and the state of the environment which are expected to be released later this year (discussed in further detail in our Insight on future biodiversity regulation in Australia).