Legislation update

Potential new koala “listing event”

By Sarah Macoun and Olivia Williamson / 29 January 2020
6 min.
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Worthwhile read for: Property Owner, Environmental Consultant, Town Planner

Recent bushfires have resulted in a devastating loss of wildlife. 

In the wake of this devastation, it has been reported that the Threatened Species Scientific Committee may bring forward an assessment and decision of whether koalas have moved from a vulnerable listing to being endangered in some parts of the country. Such a change to the categorisation of the koala if it occurs is known as a “listing event” under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). 

This article looks at the existing operative provisions of the EPBC Act regarding changes to listings and outlines the way in which proposed or existing projects may be impacted by any such change. The information set out in this article proceeds on the basis that there are no proposed amendments to the provisions in the EPBC Act itself. 

Section 178 of the EPBC Act requires the Minister to establish a list of threatened species divided into the following categories:

  • extinct; 
  • extinct in the wild; 
  • critically endangered; 
  • endangered; 
  • vulnerable; or
  • conservation dependant. 

Section 184 of the EPBC Act allows a Minister to amend the list of threatened species, including by transferring a species from one category in the list to another category in the list in accordance with the nomination and listing process outlined in Subdivision AA of the EPBC Act. 

In deciding whether to make an amendment to the list of threatened species, section 189 of the EPBC Act requires the Minister to first obtain and consider advice from the Threatened Species Scientific Committee on the proposed amendment. 

From 2 May 2012, the koala populations of Queensland, New South Wales and the Australian Capital Territory were listed as threatened species within the category of “vulnerable” for the purposes of the EPBC Act. 

The inclusion of certain koala populations as a listed threatened species was a “listing event” for the purposes of the EPBC Act. Any change to a listed threatened species to being listed in another category representing a higher degree of endangerment would also be a “listing event”. 

How then would any potential new koala “listing event” operate to affect existing projects or proposed projects under the EPBC Act?

Firstly and briefly, there are certain actions which are afforded protection in sections 43A and 43B of the EPBC Act. 

Outside of those protections, section 158A of the EPBC Act provides that if the Minister has made a decision under section 75 that an action is a controlled action or is not a controlled action and after that decision was made, a listing event occurs: 

  • the section 75 decision, or any other “approval process decision” made in relation to the relevant action before the listing event occurred, is not affected by the listing event; 
  • the listing event is to be disregarded in making any further approval process decision in relation to the relevant action and in doing anything under chapter 4 (which concerns environmental assessments and approvals) in relation to the relevant action (whether that approval process decision is or was made before or after the listing event occurred). 

Section 158A(3) provides that the validity of the primary decision, or any other “approval process decision” made in relation to the relevant action before the listing event occurred, is not affected by the listing event, nor can it be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to, the listing event.

Section 158A(4) clearly intends to enable any further approval process decisions or matters under chapter 4 in relation to the relevant action (determined to be a controlled action prior to a listing event), to continue unaffected by the listing event.

“Approval process decision” is defined in section 158A to mean any of the following decisions:

  • a decision under section 75 whether an action is a controlled action;
  • a decision under section 75 whether a provision of Part 3 is a controlling provision for an action;
  • a decision under section 78 in relation to a decision referred to in paragraph (a) or (b) of the definition;
  • a decision under section 87 on the approach for the assessment of impacts of an action;
  • a decision under section 133 whether to approve an action;
  • a decision under section 134 to attach conditions to an approval of an action;
  • a decision under section 143 to revoke, vary or add to conditions attached to an approval of an action; or
  • any other decision made under a provision of Chapter 4 that is specified in the regulations.

Practically, the effect of section 158A is that:

  1. An action with a section 75 “controlled action” decision or a “not a controlled action” decision as at the time of the new listing event (for example, the elevation of koalas from vulnerable to endangered):
    • The validity of the Minister’s “controlled action” (including the controlling provisions for the action) or “not a controlled action” decision will not be affected by the listing event, nor can it be revoked, varied etc. 
    • The validity of a Minister’s decision under section 87 with respect to the assessment of the action is not affected by the listing event, nor can it be revoked, varied etc; 
    • After the listing event occurs, the listing event is to be disregarded in making any further approval process decisions in relation to the relevant action and in doing anything under chapter 4 in relation to the relevant action. 
  2. An action that has not been referred or for which a “controlled action” decision or a “not controlled action” decision is not afforded protection by Section 158A of the EPBC Act. Those actions will subject to the consequences that flow from the listing event. In other words, they would be assessed based on the koalas elevated listing to endangered. 

What if a project/action has to be varied? Section 156A of the EPBC Act allows a person who wishes to change a proposal that has already been referred to the Minister, to, subject to certain limitations, request the Minister to accept a variation of the original proposal. It is important to note that there are a range of circumstances when variation of a proposal is not available, such as if the Minister has made a decision that the proposed action is not a controlled action. Answering this question is complex and depends heavily on individual circumstances. Our Planning team can provide specific project advice in this regard. 

Authors
Sarah Macoun
Partner
Sarah is a Partner in our Planning and Environment practice and offers extensive experience in the areas of planning approvals, litigation and dispute resolution, together with many years of experience and a keen interest in environmental legislation and...
Olivia Williamson
Senior Associate
Olivia is a Senior Associate in our Planning and Environment practice.
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