Some further matters
108 It is plain that there will be difficulties in the administration of the Threatened Species Conservation Act unless the descriptions in the Final Determinations of the Scientific Committee are clear and unambiguous. This is especially the case in relation to ecological communities. Because the Committee may be assumed, rightly, to be concerned with an effective description of an ecological community which has scientific integrity, it may not always express itself in language which enables all who must obey the law to recognise whether the community exists in a particular location.
109 The problem was considered by the Court of Appeal in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297. In that case a challenge was brought to the validity of a determination by the Scientific Committee which listed the Kurri Sand Swamp Woodland as an endangered ecological community. Amongst other matters it was submitted that the description of the community was uncertain and accordingly the determination was bad in law.
110 The form of the Committee's Final Determination in VAW generally follows the same form as the Final Determination for Blue Gum High Forest. Some of the theoretical difficulties in the application of the Final Determination identified by the appellant in VAW have arisen in fact in the present case.
111 The Court of Appeal did not detail the entire argument and response on the uncertainty issues which it considered. Apparently much of the argument was found in the written submissions of the Committee. However Beazley JA recognised that the process of identifying an ecological community "is a complex, detailed scientific process and goes beyond a mere listing of species in an area."
112 The challenge to the validity of the determination in VAW failed. However, the Chief Justice acknowledged that "to satisfy the requirement of certainty to an appropriate standard, the terms of the Scientific Committee's final determination must enable a citizen to decide whether a specific location falls within it." His Honour found that the determination in VAW satisfied this test. The Chief Justice said:
"In my opinion, the Kurri Sand Swamp Woodland ('KSSW') final determination satisfies the requirement of reasonable certainty of expression. As to the 'particular area' to which it applies, the community must be found on certain specified soils in the Sydney Basin Bioregion. It was noted that the community had been known to occur in the Kurri-Kurri-Cessnock area in the Cessnock local government area, but may occur elsewhere in that general area, but not in the specific local government area. The restriction to the Kurri-Kurri-Cessnock area is, in my opinion, sufficient. The assemblage of species listed must be found within this area and on the type of soils identified, in order to constitute the KSSW. As to the specificity of the assemblage, I would adopt the reasons of Beazley JA and add the following. Two rare and defining canopy species were described as 'generally' present in the KSSW, and typical species were listed for all strata below the canopy - the shrubby, the lower and the ground. This is reasonably capable of ascertainment in a particular case."
113 Hodgson JA also considered "the "uncertainty" issue and the "definition" issue". His Honour said:
"Next, I turn to what have been called the 'uncertainty' issue and the 'definition' issue. There is, as submitted for the appellant, a measure of uncertainty and lack of definition in the ecological community determined to be an endangered ecological community in this case.
However, this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of "ecological community" as "an assemblage of species occupying a particular area". Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of "occupation" of an area by an "assemblage" of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries.
Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised as to whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there are areas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or of the other, or of neither, will be incapable of precise and definite determination.
It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause a determination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition.
When one has regard to these considerations, and to the further discussion by Beazley JA, it is clear to my mind that this particular attack made by the appellant must fail.
I appreciate that there is force in the appellant's submission, based on s.118A of the National Parks & Wildlife Act 1974, that this raises difficulties for people having to decide whether to remove or otherwise damage a plant of a particular species in an area which may or may not be occupied by an endangered ecological community. Section 118A of that Act is in the following terms:
[Section 118A was then set out]
Regard should also be had to s 181(2A) of the same Act, which is in the following terms:
181. Evidentiary provision etc.
…
(2A) An allegation, in an information in respect of an offence against this Act or the regulations, that an animal or plant is a member of a species, population or ecological community specified in that information is sufficient proof of the matter so alleged unless the defendant proves to the contrary.
I accept that these provisions raise difficulties for people considering what to do about plants or animals of particular species in areas that may or may not be occupied by an endangered ecological community. However, these difficulties are necessarily involved in the way the legislation has been framed. It may be possible that hardship will be avoided by consideration of the element of mens rea involved in s.118A offences: there may for example be recognised a defence to the effect that the person in question reasonably believed that the species being dealt with was not part of an endangered ecological community."
114 Apart from difficulties which may arise for individuals who may face prosecution for an unwitting breach of the law, which Hodgson JA recognised, if significant uncertainties remain, the integrity of the legislative scheme may be threatened. The inclusion in the Schedule of an ecological community which was once commonly found in areas which have now been extensively developed, without clearly defining the extent to which its degradation will preclude a finding that that relevant community exists, has the potential to create considerable problems. Any large undeveloped curtilage of an existing dwelling in many parts of the northern areas of Sydney may contain a relevant community. However, few ordinary homeowners would be able to identify for themselves whether a relevant community exists. A law which requires homeowners to retain an ecological consultant before mowing the lawn or carrying out other domestic activities, which may be necessary even to sustain a defence of honest and reasonable mistake (see Proudman v Dayman (1941) 67 CLR 536, and the discussion in Gillies, Criminal Law (4th ed) p 99) may have been an appropriate temporary solution to a problem when the legislation was enacted. I doubt whether it will prove effective in the longer term. The solution to the problem may be to create a catalogue containing the parcels of land where the relevant communities have been identified, so that landowners may properly understand their obligations. This is, of course, the fundamental mechanism of the planning process utilised extensively to protect heritage items, and there is no reason why it could not be utilised for endangered ecological communities. Another possibility may be to consider whether, rather than providing an offence of absolute liability, criminal sanctions should be imposed only when someone knowingly damages a community.
115 As the evidence in the present case makes plain, experts with very considerable experience can have fundamentally different opinions about the existence of an ecological community on a site. Even if there was a common understanding of the effect of the Scientific Committee's determination, experienced scientists may have different views as to how to go about verifying whether or not the relevant community is present. Given the difficulties which arise when the problem is addressed by experts, it is not readily apparent how lay people are to order their affairs.
116 This is not an ephemeral problem. Many listed communities will have existed in many parts of the state including in the developed areas of Sydney. In those places remnant vegetation may exist, often on private property.
117 The problem is equally significant with respect to the development process. The decision in Timbarra requires the court to decide whether a relevant community exists if a development consent is challenged. Where, as in this case, experts may legitimately disagree about the existence of the community, because its existence will inform a jurisdictional fact, the result may be that a consent which is granted without a species impact statement may not be immune from challenge, even if notified pursuant to s 101 of the Act.