Last Friday, 9 March 2018, the NSW Government released the Land Management (Native Vegetation) Code 2018 (the “Code”). This Code remakes the Land Management (Native Vegetation) Code 2017 (the “2017 Code”) after the NSW Land and Environment Court declared the 2017 Code to be “invalid and of no effect”.
Mr David Witherdin, Chief Executive Officer of Local Land Services, discussed the re-made Code in a media release on 9 March 2018:
“The re-made Code is identical to the previous one and is an integral part of the new land management framework which gives landowners the tools and certainty they need.
The Code fulfils the recommendations of the Independent Biodiversity Legislation Review Panel and is the result of comprehensive public engagement involving more than 1000 stakeholders.
The Code delivers the right balance that supports a productive agricultural sector and a healthy environment.”
The final report of the Independent Biodiversity Legislation Review Panel was presented to the Government on 18 December 2014. The report contained a number of recommendations with the aim of improving the legislative and policy framework for native vegetation and biodiversity conservation management in NSW. Some recommendations made by the Report were (pp iv-v):
Following the report, the NSW Government committed to implementing all 43 recommendations, releasing a draft package of land management and biodiversity conservation reforms on 3 May 2016. Legislation which has resulted from this package includes the Biodiversity Conservation Act 2016 and the Local Land Services Amendment Act 2016.
The aims of the Code are outlined in regulation 3:
The aims of this Code are to:
The Code is divided into a number of parts, all of which are outlined in regulation 5 of the Code:
The 2017 Code was challenged in the NSW Land and Environment Court by the Nature Conservation Council. The Council argued that the Code was invalid because before making the Code, Primary Industries Minister Niall Blair had failed to obtain the concurrence of Environment Minister Gabrielle Upton. This concurrence is required by law. The Court upheld the challenge on procedural grounds.
After the judgment, the office of the Minister for Primary Industries released a statement in which it was confirmed that the NSW Government was “moving quickly to respond to (the) court’s declaration” (ABC News, 9 March 2018).
"Its top priority is providing legal and operational certainty to ensure the benefits of the reform continue to be realised.
(The Government is) absolutely committed to delivering on this important reform and meeting its obligation to act on the recommendations of the Independent Panel".
The Codes were re-released almost immediately, on Friday 9 March 2018. This was possible because the Codes were not an Act of Parliament and were only held by the Court to be procedurally invalid.
Upon the re-release of the Code, the Nature Conservation Council’s CEO, Kate Smolski told The Guardian:
“By waving these laws through a second time without even pausing to consider the consequences, Premier Berejiklian has gone against the wishes of voters and the advice of leading scientists.
The government’s own experts have warned 99% of koala habit on private land is left exposed to clearing by these laws and that there would be a spike in tree loss of up to 45%.
As the state’s peak environment organisation, we will continue to do everything we can to expose the damage of land clearing and will not stop until we have laws that give nature the protection it deserves.”
The Sydney Morning Herald reported that the Environmental Defenders Office's CEO, David Morris, said that the new code will open the way for broadscale land clearing "without any checks or balances":
"In conceding that they failed to follow due process, the government gives the strong impression of making laws on the run.
Ecologically sustainable development is not just another box to tick – the Environment Minister has a legal responsibility to protect biodiversity in this state."
The Greens environmental spokeswoman, Dr Mehreen Faruqi, also told the Sydney Morning Herald that if the Berejiklian Government had "any integrity they would tear up these laws permanently and commit to restoring and strengthening native vegetation protections":
"They were were warned that these laws were a disaster but arrogantly refused to listen in their pursuit to appease vested interests."
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Land Management (Native Vegetation) Code 2018, availabe on TimeBase's LawOne service.
Land Management (Native Vegetation) Code 2017, availabe on TimeBase's LawOne service.
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