By Senior Solicitor Cerin Loane
The decision by Federal Environment Minister, Sussan Ley, to upgrade the conservation status of koalas from vulnerable to endangered under Commonwealth law is a sad but welcome intervention to protect Australia’s iconic marsupial as populations continue to decline. But what does this actually mean, and how will the decision affect the protection of koalas in New South Wales (NSW), Queensland (Qld) and the Australian Capital Territory (ACT)?
Federal Environment Minister, Sussan Ley, has made the decision to upgrade the conservation status of koalas in NSW, Qld and the ACT from vulnerable to endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The upgraded status came into effect on 12 February 2022.
The World Wide Fund for Nature-Australia (WWF-Australia), the International Fund for Animal Welfare (IFAW), and Humane Society International (HSI), assisted by Environmental Defenders Office, put forward the nomination for uplisting the koala in 2020.
With koala populations already in decline in recent decades, the 2019-2020 bushfire season resulted in 3.5 million ha of koala habitat burnt across NSW, Qld and the ACT. It is estimated that there has been a population decline of 7.2% one year after the 2019-20 bushfires, and further decline is expected.i In 2020, a NSW Parliamentary Committee found that “without urgent government intervention to protect habitat and address all other threats, the koala will become extinct in New South Wales before 2050”.ii
Implications of the decision
We now explain the implications of the decision, and what it means for koala protection under Commonwealth and relevant State and territory laws.
What are the immediate implications of the decision?
Because the NSW, Qld and ACT koala populations were already listed as a vulnerable threatened species under the EPBC Act, relevant legal protections are already triggered, for example:
- Permits are required to kill, injure, take, trade, keep or move koalas on Commonwealth land;
- Activities or developments which are likely to have a significant impact on the listed koala population will require assessment and approval under the EPBC Act; and
- An approved conservation advice is in place. A conservation advice (which is required for all threatened species listed under the EPBC Act) includes a statement that sets out reasons for a species being eligible for listing, as well as information about what could appropriately be done, if anything, to stop the decline of, or support the recovery of, the species.
- The Commonwealth Environment Minister can choose to prepare a recovery plan for the koala; and list the species’ habitat as “critical habitat”. A recovery plan sets out research and management actions needed to support the recovery of listed threatened species or ecological communities.
The Minister has published an updated conservation advice in line with the decision to uplist the koala to endangered. However, a conservation advice, while mandatory, need only be considered by the Minister when making decisions under the EPBC Act.
Recovery plans are a more robust conservation tool, as decision makers cannot make a decision that is inconsistent with a recovery plan. However, to date, no recovery plan for the koala has been made under the EPBC Act. In 2021, the Commonwealth Department of Agriculture, Water and the Environment undertook public consultation on a draft recovery plan for koalas (combined populations in Queensland, New South Wales and the Australian Capital Territory). The draft plan acknowledged that a reassessment of the listing status under the EPBC Act was underway, and any change to the conservation status would be incorporated into the final version of the recovery plan. Therefore, it is expected that the final recovery plan for koalas, which the Government has now indicated it will finalise,iii will reflect its endangered status. Once made, the Commonwealth Environment Minister cannot make an approval decision that is inconsistent with the recovery plan.
No koala habitat has been declared as critical habitat. A recovery plan must identify habitat ‘critical to the survival of the species or ecological community’. When making a recovery plan the Commonwealth Environment Minister must consider whether or not to list habitat that is identified in the recovery plan as being critical to the survival of the species or ecological community on the Critical Habitat Register.
The Department has also prepared EPBC Act referral guidelines for the vulnerable koala. A note on the Department’s website indicates that this guideline is no longer current following the decision to uplist the koala as endangered.iv We suggest that the Department should quickly update its guidelines to reflect the upgraded conservation status of the koala.
Will the conservation status of koalas automatically be updated on relevant state and territory threatened species lists?
Threatened species listings in NSW, Qld and the ACT will not automatically be updated following the Commonwealth Minister’s decision. But under the Common Assessment Method (CAM) relevant states and territories can rely on the Commonwealth’s assessment to update their own lists (instead of starting the assessment process from scratch).
The listing process differs in each state and territory. You can find out more about the listing process in NSW and Qld in our Fact Sheet, available to download here. In summary:
- In NSW, the NSW Threatened Species Scientific Committee (TSSC) can make a final determination relying on the assessment undertaken by the Commonwealth (see sections 4.10(2)(c), 4.13(2) and 4.14(3)) of the Biodiversity Conservation Act 2016 (NSW) (BC Act). If approved by the TSSC, the BC Act is updated to include the listing when the TSSC’s final determination is made by publication on the NSW legislation website (or a later date if specified in the determination) (BC Act, s 4.17). The NSW Minister for the Environment is not involved in the determination process.
- In Qld, threatened species are prescribed by regulation (see Part 5 of the Nature Conservation Act 1992 (Qld)). In practice, the Species Technical Committee (STC) can make a recommendation to the Minister for the Environment and the Great Barrier Reef regarding the conservation status of a species. This is done following the assessment of a nomination received from members of the public and external and government scientists, or following the receipt of an assessment forwarded by another Australian jurisdiction undertaken in accordance with the CAM (in this case the Commonwealth assessment).v Following the STC’s recommendation, the Minister must then decide within 30-days whether whether to recommend to the Governor in Council the making of a regulation prescribing the native wildlife to be a particular class of wildlife (e.g. the Nature Conservation (Animals) Regulation 2020).vi
- In the ACT, the Minister may include or transfer a species on the ACT list, relying on the Commonwealth listing, following consultation with the ACT scientific committee (see s90A of the Nature Conservation Act 2014). The Minister does this by revising and preparing a final version of the list (s90A(5)).
There appears to be no other timeframes for states and territories to update their lists following the decision by the Federal Minister.
However, we strongly encourage NSW, Qld and the ACT to act quickly to update their own lists following the Minister’s decision. In particular, the NSW TSSC received a nomination in 2020 to provisionally list the koala as endangered in NSW under emergency listing provisions in the BC Act.vii No final determination to provisionally list the koala was made. It would now be prudent of the TSSC to move directly and quickly to making a final determination on the conservation status of the koala in NSW, consistent with the Commonwealth’s assessment.
Will the decision automatically stop certain development projects from going ahead?
In short, no. In most cases, environment and planning laws will require decision-makers to consider the impacts of proposed development on koalas (see below for more detail). There may also be additional obligations on decision-makers when making decisions (for example, under Commonwealth law, the Environment Minister cannot make a decision that is inconsistent with a recovery plan for a threatened species).
What does the decision mean for projects requiring assessment under the EPBC Act?
Projects currently under assessment under the EPBC Act are not affected by the decision. Specifically, section 158A of the EPBC Act provides that:
- The validity of an approval process decision made before the ‘listing event’ (ie – the decision to upgrade the conservation status of the koala) occurred, is not affected by the listing event.
- After the listing event occurs, the listing event is to be disregarded in making any further approval process decisions in relation to the project; or in relation to any other action in the approval process.
However, because the koala was already listed as vulnerable under the EPBC Act, projects that have already been determined as having a significant impact on koalas will need to continue to assess those impacts. EDO has consistently called for the Commonwealth Minister to ensure that decisions made under the EPBC Act take into account the impacts of the 2019-2020 bushfire season. This would include ensuring that the Minister considers, to the extent possible, the most up-to-date information on koalas.
Any new projects referred under the EPBC Act, will need to be considered, and if found to be a ‘controlled action’ (ie there is a significant impact on koalas), assessed having regard to the upgraded endangered conservation status of koalas in NSW, Qld and the ACT.
What does the decision mean for projects requiring assessment under state and territory laws?
In general, state and territory planning and environment laws are not affected by the decision, and project assessment would continue unaffected. If NSW, Qld or the ACT update their own threatened species lists following the decision, then it would be necessary to consider what implications that would have for existing projects under relevant state and territory laws.
Will other relevant state or territory laws aimed at protecting koalas by impacted by the decision?
Other state and territory laws are unlikely to be directly affected by the decision. For example, in New South Wales the decision does not affect the operation of State Environmental Planning Policy (Koala Habitat Protection) 2020 or State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPPs). The identification of core koala habitat, preparation of koala plans, and assessment of impacts will continue as required by the Koala SEPPs. The decision does not affect the way core koala habitat is identified for the purpose of categorising land as Category 2 – sensitive regulated land under the Local Land Services Act 2012 (NSW). Similarly, the decision does not affect the operation of the Qld Nature Conservation (Koala) Conservation Plan 2017.
However, the uplisting of the koala to endangered under the EPBC Act, should act as a warning signal that current protections are not working, and that an overarching review of relevant state and territory laws is warranted.
Will the decision lead to improved outcomes for koalas?
While the decision is a welcome step towards recognising the plight of koalas in NSW, Qld and the ACT, without further intervention to address key threats to koalas, including habitat degradation and loss and climate change, the decision alone is unlikely to be enough to reverse trends in declining koala numbers.
Previous EDO analysis highlights that the failure to adequately identify and protect koala habitat, flexible offsetting rules, poorly implemented land clearing laws, and inadequate safeguards against logging impacts are all contributing to the ongoing decline in koala populations.viii
Without further action, the koala may very well end up being listed as critically endangered or, as current predictions suggest,ix extinct in certain parts of Australia.
[i] See the Commonwealth Department of Agriculture, Water and Environment, Consultation Document on Listing Eligibility and Conservation Actions for Phascolarctos cinereus (Koala), 2021, available at https://www.awe.gov.au/environment/biodiversity/threatened/nominations/comment/koala-2021
[ii] See Legislative Council, Portfolio Committee No. 7, Koala populations and habitat in New South Wales, Final Report, June 2020, Finding 2, available at www.parliament.nsw.gov.au/lcdocs/inquiries/2536/Koala%20populations%20and%20habitat%20in%20New%20South%20Wales%20-%20Report%203.pdf
[iii] See https://www.theguardian.com/environment/2022/feb/11/koala-listed-as-endangered-after-australian-governments-fail-to-halt-its-decline
[iv] See https://www.awe.gov.au/environment/biodiversity/threatened/publications/epbc-act-referral-guidelines-vulnerable-koala
[v] See https://www.qld.gov.au/environment/plants-animals/conservation/threatened-wildlife/threatened-species/conservation-status/species-technical-committee; and https://www.qld.gov.au/environment/plants-animals/conservation/threatened-wildlife/threatened-species/conservation-status
[vi] See section 132B of the Nature Conservation Act 1992 (Qld)
[vii] See https://www.ifaw.org/au/press-releases/emergency-uplisting-koalas-new-south-wales
[viii] See, for example:
- Environmental Defenders Office, Analysis: New Koala SEPP Commences in NSW – But Worse is Yet to Come, 8 April 2021, available at https://www.edo.org.au/2021/04/08/new-koala-sepp-commences-in-nsw-but-worse-is-yet-to-come/
- Environmental Defenders Office, Submission to the NSW Upper House Inquiry into koala populations and habitat in NSW, August 2019, available at https://www.edo.org.au/publication/inquiry-into-koala-populations-and-habitat-in-nsw/
- Environmental Defenders Office, Submission to the draft Queensland Koala Conservation Strategy, January 2020, available at https://www.edo.org.au/publication/koala-conservation-strategy-submission/
[ix] See above, no. 2.