By Senior Solicitor Cerin Loane 

Following the Commonwealth’s decision earlier this year to upgrade the conservation status of koalas from vulnerable to endangered under national law, New South Wales has followed suit, uplisting the koala from vulnerable to endangered under the State’s Biodiversity Conservation Act 2016. We now consider what implications this may have for the protection of koalas in NSW.  

Introduction 

In February 2022, former Federal Environment Minister, Sussan Ley, made the decision to upgrade the conservation status of koalas in New South Wales (NSW), Queensland and the Australian Capital Territory from vulnerable to endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999  (EPBC Act) – see our earlier analysis here. 

On 20 May 2022, the NSW Threatened Species Scientific Committee (TSSC) published its final determination to list the koala (Phascolarctos cinereus) as an endangered species under the Biodiversity Conservation Act 2016 (NSW) (BC Act). In doing so, the TSSC omitted from the BC Act the listing of the koala as vulnerable (its previous conservation status), and omitted the listing of three individual koala populations as endangered under BC Act.  

The uplisting of the koala from vulnerable to endangered sends a clear signal that consecutive governments have failed to put in place the necessary measures to reverse the decline in koalas.  

In particular, planning, land clearing and forestry laws fail to provide absolute protections for koalas – in many cases koala habitat can continue to be cleared despite the uplisting decision. A strengthening of koala protections is needed across the board to ensure the trajectory of decline does not continue and end with the extinction of the koala in the wild in NSW.  

Implications of the uplisting decision  

This legal update examines what the NSW uplisting means for decision-making and whether this will be enough to save our koalas from extinction. This is not legal advice – the application of the law may vary depending on individual circumstances, and people should seek legal advice as required.  

  • Implications for the NSW Koala Strategy 

The NSW Koala Strategy is a non-statutory policy document outlining actions the NSW Government will take to achieve its long-term goal of doubling koala numbers by 2050. The Koala Strategy was released in April 2022 prior to the decision to uplist the koala from vulnerable to endangered in NSW (but after the koala was listed as endangered under the EPBC Act). It was likely finalised knowing that the uplisting of the koala in NSW was being considered by the NSW TSSC. 

The uplisting of the koala does not directly affect the Koala Strategy – for example, the actions can still be delivered, and there is no requirement to update the strategy. However, a review and update of the Koala Strategy should be undertaken if it is shown to be unable to reverse the decline of the koala. 

  • Offences under the BC Act 

The uplisting of the koala from vulnerable to endangered means that penalties for harming koalas increase under the BC Act (for both criminal penalties – see sections 2.1 and 13.1 of the BC Act; and penalty notice infringements for less serious incidents – see Schedule 1, Biodiversity Conservation Regulation 2017 (BC Regulation)). We note that certain defences are available under the BC Act – such as holding a valid development consent or clearing approval – under Part 2, Division 2 of the BC Act. 

  • Considering impacts of development on koalas 

The Environmental Planning and Assessment Act 1979 (EP&A Act) requires a consent authority to consider the impacts of development on the environment, including threatened species. The application of the EP&A Act will differ on a case-by-case basis, but in general: 

  • A decision maker will be required to consider the impacts of a development on koalas having regard to its endangered status (we note, in some instances listing decisions may not be required to be considered for applications already lodged, but this is unlikely to apply in the case of the koala uplisting – see cl 7.4 of the BC Regulation). 
  • The uplisting of the koala may affect the application of the Biodiversity Assessment Method (BAM) for the purpose of preparing a Biodiversity Development Assessment Report (BDAR) under 6.12 of the BC Act, as some elements of the BAM are applied having regard to the threat status of the relevant threatened species (for example, under the BAM, a vulnerable threatened species is classified as having a ‘moderate sensitivity to loss’ whereas an endangered threatened species is classified as having a ‘high sensitivity to loss’). 
  • There are limited options to vary or modify planning decisions made before the uplisting determination. (However, under s 4.57 of the EP&A Act, if a certain environmental planning instrument (EPI) (such as a SEPP or Local Environmental Plan) was proposed, that aimed to protect koala habitat (e.g identifies specific habitat for key koala populations), then the Department or local council (respectively for SEPPs and LEPs) may be able to modify or revoke consent that would otherwise permit destruction of koala habitat, having regard to the proposed EPI). 
  • Implications for the State Environmental Planning Policy on Koalas (Koala SEPP)  

Chapters 3 and 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) contain rules for koala habitat protection (essentially, the former provisions of both State Environmental Planning Policy (Koala Habitat Protection) 2020 and State Environmental Planning Policy (Koala Habitat Protection) 2021). These rules apply for certain development proposed under the EP&A Act.  

These rules are unaffected by the decision to uplist the koala from vulnerable to endangered and continue to operate, as applicable. We note that Guidelines to support Chapter 3 and Chapter 4 of the Biodiversity and Conservation SEPP are still in development. We recommend that the Guidelines be developed to ensure strong protections for koalas, reflective of the recent uplisting of the koala as endangered.  

  • Implications for forestry rules 

There are no direct implications of uplisting the koala from vulnerable to endangered on the rules regulating forestry operations in NSW (for example, Integrated Forestry Operations Approvals (IFOAs) or the Private Native Forestry Code of Practice). This is because the rules apply uniformly to threatened species (whether vulnerable or endangered), and specific protections for koalas are not affected by a change in the conservation status of the koala. 

However, in light of the uplisting of the koala from vulnerable to endangered, we recommend that koala protections are strengthened under forestry rules. This could include making koala habitat off limits to forestry. This could be done, for example, by the relevant Minister/s amending relevant IFOAs in accordance with the Forestry Act 2012 (NSW) and the Private Native Forestry Code of Practice in accordance with Part 5B of the Local Land Services Act 2013 (LLS Act). 

  • Implications for land clearing rules 

The uplisting of the koala from vulnerable to endangered in NSW does not affect land clearing undertaken in compliance with the Land Management (Native Vegetation) Code 2018. This is because koala protections in the Code rely on the identification of ‘core koala habitat’ – which is not affected by the uplisting decision.   

Higher impact land clearing activities that cannot be carried out under the Code require approval by the Native Vegetation Panel (NVP) under the LLS Act. The NVP is required to consider the likely impact of the proposed clearing on biodiversity values, including threatened species, as set out in a BDAR. As noted above, the conservation status of the koala may affect the application of the BAM in preparing a BDAR.  

  • Omitting koala populations from the threatened species list 

In its final determination the NSW TSCC determined to remove the following koala populations as endangered populations under the BC Act: 

  • The “population between the Tweed River and Brunswick River east of the Pacific Highway” 
  • The “Hawks Nest and Tea Gardens population”; and  
  • The population “in the Pittwater Local Government Area”. 

The final determination does not explain the reason for this decision, but it is consistent with cl 4.1(5) of the BC Reg, which provides that a population of a species is not eligible to be listed, unless the species to which the population belongs is not separately listed as a threatened species. 

The inclusion of cl 4.1(5) in the BC Regulation (ie, a clause that limits the ability to list individual populations as threatened) as part of the 2016 reforms was met with disappointment, as it fails to recognise that individually threatened populations, even within a species that has an overall threat status, can play an important role in the functioning of ecosystems at local and regional scales. 

The broader implications of this policy are likely to become apparent as we start to see decisions being made that may affect these individual populations. 

Summary 

The uplisting of the koala from vulnerable to endangered highlights that koala protections have failed to reverse the decline in koalas. It sends a clear signal that a strengthening of koala protections is needed across the board to ensure the trajectory of decline does not continue and end with the extinction of the koala in the wild in NSW. 

As the analysis in this legal update shows, while the uplisting will mean impacts on koalas may be considered more thoroughly in certain decisions, and there may be more deterrent to the unlawful harming of koalas with increased penalties, many processes will not be significantly changed or impacted by the uplisting. This means that NSW laws will still allow koala habitat to be lawfully cleared for a range of reasons under a range of existing, inadequate laws, cumulatively contributing to the decline in koala populations.  

Effective and comprehensive law reforms, recovery actions and habitat protections are needed. To find out more about how EDO recommends strengthening protections for koala, read our 2019 submission to the NSW parliamentary inquiry into koala populations and habitat in New South Wales, available here. Key recommendations include: 

  • Revising RFAs and Coastal IFOAs to improve forestry practices and strengthen protections for koala populations and habitat; 
  • Strengthening the legal framework for private native forestry to improve environmental outcomes for koala populations and habitat; 
  • Limiting code-based clearing, and amending land management laws to strengthen protections biodiversity, including for koala populations and habitat; 
  • Declaring important koala habitats to be Areas of Outstanding Biodiversity Value under the BC Act; 
  • Reforming biodiversity laws to strengthen protections for koala populations and habitat, including re-introducing provisions to list specific koala populations as a separate listing, irrespective of whether a species is already listed; 
  • Strengthening the biodiversity offsets scheme; and  
  • Undertaking a review of all other relevant legislation that impacts on koala conservation, to ensure a whole of government approach is coordinated to prevent the extinction of koalas in NSW.