6 Criteria for determining eligibility for listing 2
7 Information which must be provided when making a nomination 2
8 Notice of making of habitat conservation order 3
9 Decision-making criteria for licences, permits and authorisations 3
10 Prescribed form for certificate and application for certificate 4
Schedule 1—Eligibility criteria for determining eligibility for listing of taxon of flora or fauna under Division 2 of Part 3 5
Schedule 2—Eligibility criteria for determining eligibility for listing of communities of flora or fauna under Division 2 of Part 3 13
Schedule 3—Eligibility criteria for determining eligibility for listing of potentially threatening processes under Division 2 of Part 3 15
Schedule 4—Information which must be included in a nomination made under section 16A of the Act 17
Schedule 5—Forms 22
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Endnotes 25
1 General information 25
2 Table of Amendments 27
3 Amendments Not in Operation 28
4 Explanatory details 29
Version No.001
Flora and Fauna Guarantee Regulations 2020
S.R. No. 41/2020
Version as at
1 June 2020
1 Objective
The objective of these Regulations is to prescribe the following for the purposes of the Flora and Fauna Guarantee Act 1988—
(a) eligibility criteria for the listing of taxa of flora or fauna, communities of flora or fauna or potentially threatening processes;
(b) information that must be included in nominations;
(c) the form of certain notices, applications and certificates;
(d) the decision-making criteria for the issuing of a licence or permit or the making of an Order for an authorisation.
2 Authorising provision
These Regulations are made under section 69 of the .
Section 1 - Flora and Fauna Guarantee Regulations 2020 - Flora and Fauna Guarantee Regulations 2020 | Zoe
Flora and Fauna Guarantee Act 1988
3 Commencement
These Regulations come into operation on 1 June 2020.
4 Revocation
The Flora and Fauna Guarantee Regulations 2011[1] are revoked.
5 Definition
In these Regulations—
the Act means the Flora and Fauna Guarantee Act 1988.
6 Criteria for determining eligibility for listing
(1) For the purposes of Division 2 of Part 3 of the Act, the eligibility criteria by which the eligibility of a taxon of flora or fauna to be specified in the Threatened List is determined are the criteria set out in Schedule 1.
(2) For the purposes of Division 2 of Part 3 of the Act, the eligibility criteria by which the eligibility of a community of flora or fauna to be specified in the Threatened List is determined are the criteria set out in Schedule 2.
(3) For the purposes of Division 2 of Part 3 of the Act, the eligibility criteria by which the eligibility of a potentially threatening process to be specified in the Processes List is determined are the criteria set out in Schedule 3.
Notes
1 Limitations on eligibility are provided by sections 13, 14, 15 and 16 of the Act.
2 See also section 4B(4) of the Act regarding guidelines in relation to the proper consideration of the objectives of this Act and the instruments made under it by public authorities.
7 Information which must be provided when making a nomination
For the purposes of section 16A(4)(a) of the Act, the information to be included in a nomination is the information set out in Schedule 4.
8 Notice of making of habitat conservation order
For the purposes of section 29(4) of the Act, the form of a notice of the making of a habitat conservation order is Form 1 in Schedule 5.
9 Decision-making criteria for licences, permits and authorisations
For the purposes of sections 48(3), 48A(2), 53(2) and 53A(2) of the Act, the relevant decision maker must take into account the following criteria—
(a) the objectives of the Act;
(b) the category of threat, if any, that applies to the taxon of flora or fauna;
(c) any relevant actions statement, critical habitat determination, habitat conservation order, management plans or public authority management agreement made under the Act;
(d) the acceptability of impacts on the taxon of the relevant flora or fauna, including the following—
(i) any long and short-term impact;
(ii) any beneficial and detrimental impact;
(iii) any direct or indirect impact;
(iv) any cumulative impact;
(v) the impact of any potentially threatening process;
(e) any possible social and economic effect that the issuing of the licence or permit or the giving of an authorisation, as the case requires, may have.
Note
Sections 48, 48A, 53 and 53A of the Act include restrictions on the issuing of a licence or permit or the giving of an authorisation.
10 Prescribed form for certificate and application for certificate
(1) For the purposes of section 65(2) of the Act, the form for an application for a certificate is Form 2 in Schedule 5.
(2) For the purposes of section 65(4) of the Act, the form for a certificate is Form 3 in Schedule 5.
Schedule 1—Eligibility criteria for determining eligibility for listing of taxon of flora or fauna under Division 2 of Part 3
Regulation 6(1)
Eligibility criteria for determining eligibility for listing of taxon of flora or fauna under Division 2 of Part 3
A taxon of flora or fauna is at risk of extinction in a particular category of threat and is therefore eligible to be specified in the Threatened List in relation to that category if a primary criterion for that category is met.
Where applicable, a primary criterion is met if any one of its subcriteria is satisfied.
Note
Section 13 of the Act sets out the categories of threat.
Section 16C(3) of the Act provides that the Committee must assess the eligibility of a taxon of flora or fauna to be specified on the Threatened List first on the basis of its risk of extinction in Australia.
Section 16C(4) of the Act provides that the Committee may only assess the eligibility of a taxon of flora or fauna to be specified in the Threatened List on the basis of its risk of extinction in Victoria in the circumstances set out in that section.
1 Category of threat—extinct
Note
See section 3(1) of the Act for definition of extinct.
Primary criterion 1.1
The taxon of flora or fauna is extinct.
Without limiting the generality of primary criterion 1.1, this primary criterion is met if—
(a) exhaustive surveys throughout the taxon's historic range fail to record an individual member of the taxon; and
(b) those surveys were conducted over a time frame appropriate to the taxon's life cycle and life form, in known or expected habitat and at appropriate times (diurnal, seasonal, annual).
2 Category of threat—extinct in the wild
Note
See section 3(1) of the Act for definition of extinctin the wild.
Primary criterion 2.1
The taxon of flora or fauna is extinct in the wild.
Without limiting the generality of primary criterion 2.1, this primary criterion is met if—
(a) exhaustive surveys throughout the taxon's historic range fail to record an individual member of the taxon; and
(b) those surveys were conducted over a time frame appropriate to the taxon's life cycle and life form, in known or expected habitat and at appropriate times (diurnal, seasonal, annual).
3 Category of threat—critically endangered
Note
See section 3(1) of the Act for definition of criticallyendangered.
Primary criterion 3.1
The taxon of flora or fauna is critically endangered.
Subcriterion 3.1.1
The taxon has undergone, is suspected to have undergone, or is likely to undergo in the immediate future, a very severe reduction in population size.
Subcriterion 3.1.2
The taxon's geographic distribution is extremely restricted and at least 2 of the following circumstances apply—
(a) the distribution of the population or habitat of the taxon is severely fragmented or restricted to a limited number of threat-based locations;
(b) there is a continuing decline or reduction in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals;
(c) there are extreme fluctuations in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals.
Subcriterion 3.1.3
The taxon's estimated total number of mature individuals is very low and evidence suggests that—
(a) the number will continue to decline at a very high rate; or
(b) the number is likely to continue to decline and any one of the following apply—
(i) each subpopulation is extremely small;
(ii) most of the individuals are in one subpopulation;
(iii) extreme fluctuations occur in the number of mature individual members.
Subcriterion 3.1.4
The taxon's estimated total number of mature individuals is extremely low.
Subcriterion 3.1.5
The probability of the taxon's extinction in the wild is extremely high in the near future, based on a quantitative analysis.
4 Category of threat—endangered
Note
See section 3(1) of the Act for definition of endangered*.*
Primary criterion 4.1
The taxon of flora or fauna is endangered.
Subcriterion 4.1.1
The taxon has undergone, is suspected to have undergone or is likely to undergo in the immediate future a severe reduction in population size.
Subcriterion 4.1.2
The taxon's geographic distribution is highly restricted and at least 2 of the following circumstances apply—
(a) the distribution of the population or habitat of the taxon is severely fragmented or restricted to a limited number of threat-based locations;
(b) there is a continuing decline or reduction in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals;
(c) there are extreme fluctuations in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals.
Subcriterion 4.1.3
The estimated total number of mature individual members of the taxon is low and evidence suggests that—
(a) the number will continue to decline at a very high rate; or
(b) the number is likely to continue to decline and any one of the following apply—
(i) each subpopulation is very small;
(ii) most of the individual members are in one subpopulation;
(iii) extreme fluctuations occur in the number of mature individual members.
Subcriterion 4.1.4
The estimated total number of mature individual members of the taxon is very low.
Subcriterion 4.1.5
The probability of the taxon's extinction in the wild is very high in the near future, based on a quantitative analysis.
5 Category of threat—vulnerable
Note
See section 3(1) of the Act for definition of vulnerable.
Primary criterion 5.1
The taxon of flora or fauna is vulnerable.
Subcriterion 5.1.1
The taxon has undergone, is suspected to have undergone or is likely to undergo in the immediate future a substantial reduction in population size.
Subcriterion 5.1.2
The taxon's geographic distribution is restricted and at least 2 of the following circumstances apply—
(a) the distribution of the population or habitat of the taxon is severely fragmented or restricted to a limited number of threat-based locations;
(b) there is a continuing decline or reduction in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals;
(c) there are extreme fluctuations in any one of the following—
(i) extent of occurrence;
(ii) area of occupancy;
(iii) area, extent or quality of habitat;
(iv) number of locations or subpopulations;
(v) number of mature individuals.
Subcriterion 5.1.3
The estimated total number of mature individual members of the taxon is moderately low and evidence suggests that—
(a) the number will continue to decline at a substantial rate; or
(b) the number is likely to continue to decline and any one of the following apply—
(i) each subpopulation is small;
(ii) most of the individual members are in one subpopulation;
(iii) extreme fluctuations occur in the number of mature individual members.
Subcriterion 5.1.4
The estimated total number of mature individual members of the taxon is low.
Subcriterion 5.1.5
The taxon has a restricted geographic distribution and plausible future threats could drive it to become critically endangered or extinct in a very short time.
Subcriterion 5.1.6
The probability of the taxon's extinction in the wild is high in the near future, based on a quantitative analysis.
6 Category of threat—conservation dependent
Note
See section 3(1) of the Act for definition of conservation dependent.
Primary criterion 6.1
The taxon of fish is the subject of a plan of management that provides for management actions necessary to stop the decline, or support the recovery, of the taxon to maximise its chances of long-term survival in nature and the cessation of the plan of management would adversely affect the conservation status of the taxon.
Primary criterion 6.2
The taxon of fish is the focus of a specific conservation program the cessation of which would result in the species becoming vulnerable, endangered or critically endangered.
Note
In accordance with section 13(a) and (b) of the Act, the category of threat "conservation dependent" is applied only to a taxon of fish and only in respect of its risk of extinction in Australia.
Schedule 2—Eligibility criteria for determining eligibility for listing of communities of flora or fauna under Division 2 of Part 3
Regulation 6(2)
ELIGIBILITY CRITERIA FOR DETERMINING ELIGIBILITY FOR LISTING OF COMMUNITIES OF FLORA OR FAUNA UNDER DIVISION 2 OF PART 3
Section 14 of the Act provides that a community of flora or fauna is eligible to be listed in the Threatened List if it is—
(a) in a demonstrable state of decline that is likely to result in extinction in Victoria; or
(b) significantly prone to future threats which are likely to result in extinction in Victoria.
If a criterion set out below in relation to section 14(a) or (b) is met, the community of flora or fauna is eligible to be listed.
1 Criteria relating to section 14(a)
Criterion 1.1
The community is in a demonstrable state of decline which is likely to result in a significant loss of its component taxa.
Criterion 1.2
The community's geographic distribution has decreased markedly in a short time and the decrease is continuing.
Criterion 1.3
The community's composition has altered markedly in a short time and the alteration is continuing.
Criterion 1.4
Any other circumstance that demonstrates to the satisfaction of the Committee that section 14(a) applies to the community.
2 Criteria relating to section 14(b)
Criterion 2.1
The community—
(a) is very rare in terms of the total area it covers; or
(b) has a very restricted geographic distribution; or
(c) has been recorded from only a few localities.
Criterion 2.2
The threat is currently affecting the community and is expected to continue affecting the community in the future at a level which is likely to result in the extinction of the community.
Criterion 2.3
Any other circumstance that demonstrates to the satisfaction of the Committee that section 14(b) applies to the community.
Schedule 3—Eligibility criteria for determining eligibility for listing of potentially threatening processes under Division 2 of Part 3
Regulation 6(3)
ELIGIBILITY CRITERIA FOR DETERMINING ELIGIBILITY FOR LISTING OF POTENTIALLY THREATENING PROCESSES UNDER DIVISION 2 OF PART 3
Section 16 of the Act provides that a potentially threatening process is eligible to be listed in the Processes List if, in the absence of appropriate management, it poses or has the potential to pose a significant threat to the survival or evolutionary development of a range of flora or fauna.
If a criterion set out below in relation to section 16 is met, the potentially threatening process is eligible to be listed.
1 Criteria relating to whether the potentially threatening process poses or has the potential to pose a significant threat to the survival of a range of flora or fauna
Criterion 1.1
The potentially threatening process poses, or has the potential to pose, a significant threat to the survival of two or more taxa.
Criterion 1.2
The potentially threatening process poses, or has the potential to pose, a significant threat to the survival of a community of flora or fauna.
Criterion 1.3
Any other circumstance that demonstrates to the satisfaction of the Committee that section 16 applies to the potentially threatening process.
2 Criteria relating to whether the potentially threatening process poses or has the potential to pose a significant threat to the evolutionary development of a range of flora or fauna
Criterion 2.1
The potentially threatening process poses or has the potential to pose a significant threat to the evolutionary development of two or more taxa.
Criterion 2.2
The potentially threatening process poses or has the potential to pose a significant threat to the evolutionary development of a community.
Criterion 2.3
Any other circumstance that demonstrates to the satisfaction of the Committee that section 16 applies to the potentially threatening process.
Schedule 4—Information which must be included in a nomination made under section 16A of the Act
Regulation 7
INFORMATION WHICH MUST BE INCLUDED IN A NOMINATION MADE UNDER SECTION 16A OF THE ACT
1 In all cases
(1) The name and contact details of the nominator.
(2) The signature of the nominator or, if there is more than one, the signature of each nominator.
2 In the case of a nomination by an incorporated body
If the nominator is a body corporate—
(a) the name and contact details of the appointed representative of the nominator; and
(b) the signature of the appointed representative of the nominator.
3 In the case of a taxon nominated to be added, removed or recategorised
A statement identifying the taxon of flora or fauna that—
(a) includes—
(i) the scientific name and specification of the taxon in accordance with a relevant text or reference; or
(ii) a common name and a description of the taxon which, when taken together, unambiguously distinguish the taxon from all other taxa; and
(b) indicates whether the taxon is a vascular or a non-vascular plant, vertebrate or invertebrate animal or some other form of life.
4 In the case of a taxon nominated for addition to the Threatened List
(1) In the case of a conventionally accepted taxon, evidence that the taxon is conventionally accepted and the sources of that evidence.
(2) In the case of a taxon that is not conventionally accepted—
(a) a manuscript quality taxonomic description of the taxon; and
(b) evidence that at least one voucher specimen is lodged with a relevant scientific institution.
(3) Evidence that the taxon satisfies any of the primary criteria in Schedule 1.
Note
Nominators are encouraged to include evidence against as many criteria as possible.
5 In the case of a taxon nominated for recategorisation
Evidence that the taxon—
(a) is eligible for listing in a higher category of threat; or
(b) is no longer eligible in its current category of threat and that it is eligible in a lower category of threat.
6 In the case of a taxon below the level of sub-species nominated for addition to the Threatened List
Evidence that—
(a) the taxon satisfies any of the primary criteria in Schedule 1; and
(b) there is a special need to conserve the taxon.
7 In the case of a taxon nominated for removal from the Threatened List
Evidence that the taxon—
(a) is no longer a conventionally accepted taxon and the sources of that evidence; or
(b) no longer satisfies any of the primary criteria in Schedule 1.
8 In the case of a community of flora or fauna
(1) A statement identifying the community of flora or fauna that—
(a) specifies the community in accordance with a relevant text or reference; and
(b) describes the community in such a way that it is distinguished from any other community; and
(c) names the community based on its distinctive features and includes one or more of the following—
(i) its characteristic species;
(ii) its structure;
(iii) the environmental conditions under which it typically occurs.
(2) The community must be described with reference to its distinguishing biological and non-biological components and any key interactions and functional processes.
9 In the case of a community nominated for addition to the Threatened List
Evidence that the community satisfies any of the criteria in Schedule 2.
10 In the case of a narrowly defined community nominated for addition to the Threatened List
Evidence that—
(a) the community satisfies any of the criteria in Schedule 2; and
(b) there is a special need to conserve the community.
11 In the case of a community nominated for removal from the Threatened List
Evidence that the community—
(a) can no longer be described in such a way that it is distinguished from all other communities and the sources of that evidence; or
(b) no longer satisfies any of the criteria in Schedule 2.
12 In the case of a potentially threatening process
(1) A statement identifying the potentially threatening process that—
(a) specifies the potentially threatening process in accordance with a relevant text or reference; or
(b) describes the potentially threatening process in such a way that it is distinguishable from all other potentially threatening processes.
(2) The potentially threatening process must be identified as a process and not as a cause or a symptom of a process.
13 In the case of a potentially threatening process nominated for addition to the Processes List
(1) Evidence that the potentially threatening process satisfies any of the criteria in Schedule 3.
(2) The evidence must indicate—
(a) the range of flora or fauna affected, or potentially affected, by the potentially threatening process; and
(b) the significance of the threat which the process poses or has the potential to pose.
14 In the case of a potentially threatening process nominated for removal from the Processes List
Evidence that the potentially threatening process—
(a) can no longer be described in such a way that it is distinguishable from all other potentially threatening processes and the sources of that evidence; or
(b) no longer satisfies any of the criteria in Schedule 3.
Schedule 5—Forms
Form 1
Regulation 8
Flora and Fauna Guarantee Act 1988
Flora and Fauna Guarantee Regulations 2020
Notice of the making of habitat conservation order
Notice is hereby given in accordance with section 29(1) of the Flora and Fauna Guarantee Act 1988 of the making of a habitat conservation order relating to [insert a brief description of the area to which the habitat conservation order applies].
The habitat conservation order may be inspected at [insert details of time and place and internet site at which the habitat conservation order is available for public inspection].
Submissions may be made and addressed to [insert the name of Minister, portfolio and address].
Submissions close on [insert the date, being a date at least 30 days after the notice is received].
Inquiries can be directed to [insert relevant Departmental name and phone number].
Dated:
Name of Minister
Portfolio
Form 2
Regulation 10(1)
Flora and Fauna Guarantee Act 1988
Flora and Fauna Guarantee Regulations 2020
Application for a Certificate under Section 65(1) of the Act Indicating whether a habitat Conservation Order Applies to Land
To the Secretary to the Department
[Insert the postal address of the Department]
Please provide a certificate indicating whether the land described below is subject to a habitat conservation order.
[Describe the land, giving sufficient information so that it can be readily identified providing, in particular, details such as a map, title details and the address of the land.]
Name of applicant(s):
Address(es):
[Signature(s) of applicant(s)]
Date:
Form 3
Regulation 10(2)
Flora and Fauna Guarantee Act 1988
Flora and Fauna Guarantee Regulations 2020
Certificate under Section 65(3) of the Act Indicating whether a habitat Conservation Order Applies to Land
This certificate is issued to:
[Insert the name(s) and address(es) of the applicant(s)]
This is to certify that on [insert the date] the land described below *was the subject of a habitat conservation order(s)/*was not the subject of a habitat conservation order:
Description of land:
[Insert a description of the land]
Signature:
Date of certificate:
*delete if inapplicable.
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Flora and Fauna Guarantee Regulations 2020, S.R. No. 41/2020 were made on 26 May 2020 by the Governor in Council under section 69 of the Flora and Fauna Guarantee Act 1988, No. 47/1988 and came into operation on 1 June 2020: regulation 3.
The Flora and Fauna Guarantee Regulations 2020 will sunset 10 years after the day of making on 26 May 2030 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the Flora and Fauna Guarantee Regulations 2020 by statutory rules, subordinate instruments and Acts.
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.