Dear Mr McGuire,

Thank you for your request of 1 October 2016 for documents under the Freedom of Information Act 1982 (FOI Act). Your request was made in the following terms:

[Item 1] the scientific, objective measures required for the TSSC committee to decide that the clump of trees is "an endangered ecological community";

[Item 2] the exact and detailed ratios and/or numbers and/or variety of flora needed for it to be "an endangered ecological community;"

[Item 3] the measures and/or steps and/or procedures required for a previous decision to be reversed in the event that no evidence was found to scientific and/or made with objectivity; and

[Item 4] the meeting minutes where objective data was discussed prior to the classification of Marshall Mount NSW becoming part of the above endangered ecological community.

In relation to Items 1 to 3, the Department notes that these are requests for information rather than documents. As the FOI Act requires that a request be made for documents, we are unable to process these Items under the FOI Act. Nevertheless, the Department is able to provide you with the following information which may assist to clarify your queries:

• The Threatened Species Scientific Committee (TSSC), an independent body of experts, advises the Minister regarding the eligibility of ecological communities for listing in one of the three threatened categories (vulnerable, endangered, critically endangered).

• Regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the
Regulations)(available at https://www.legislation.gov.au/) contain the criteria for listing in each of these categories. To be considered eligible for listing, an ecological community must meet at least one of the criteria. Individual sites are not considered as part of this analysis, rather the overall patterns of decline of an ecological community across its entire range. That is, individual sites are not listed, rather the threatened ecological community which is defined under the EPBC Act as an assemblage of native species that inhabit a particular area in nature. In other words, ecological communities are groups of native plants, animals and other organisms that naturally occur together and interact in a unique habitat.

• The map provided on the Species Profile and Threats Database (http://www.environment.gov.au/cgi-bin/sp... indicative only of the likely range within which the ecological community may be found and does not identify the presence of the ecological community at any given site within this range.

• Individual sites containing a threatened ecological community can only be identified through field survey,
preferably by a suitably qualified expert.

• The Conservation Advice provided by the TSSC to the Minister outlines the definition and consideration of the
eligibility of the Illawarra and south coast lowland forest and woodland ecological community against the criteria set out in the Regulations. It is available here: http://www.environment.gov.au/cgi-bin/sp....

• Pages 8-15, 24-25 and Appendices C and E of the Conservation Advice contain information that may be of interest to you. In particular, note that only areas that meet the key diagnostic characteristics and minimum condition requirements require consideration of significant impacts from actions under national environment law, the Environment Protection and Biodiversity Conservation Act 1999. However, areas that both meet and don’t meet the minimum condition thresholds may be eligible for Commonwealth Government funding initiatives to restore their ecological condition (for more information on these initiatives see: http://www.nrm.gov.au/)

• Within the Illawarra Region, the threatened status of this ecological community has also been recognised
since 1999 through NSW legislation which has listed the Illawarra lowlands grassy woodland in the Sydney Basin Bioregion as endangered: http://www.environment.nsw.gov.au/determ...

In relation to Item 3, it is unclear which decision you seek information relating to its potential reversal. A relevant decision may be either the decision to list the entire ecological community, alternatively, it may be a decision following a referral of a proposed action that may significantly impact on the ecological community. Separate processes attach to each type of decision and, accordingly, we seek further information from you about the information or documents you are seeking under cover of Item 3 of your request.

In relation to Item 4, the minutes of the relevant meeting in which the proposed listing of the Illawarra and south coast lowland forest and woodland ecological community was tabled do not contain any discussion of individual sites or locations, such as Marshall Mount. Accordingly, there are no documents that relate to Item 4.

We would like to further discuss your request of 1 October 2016 and how the Department can assist you to make this a valid request for the purposes of the FOI Act. Please either provide us with an appropriate phone number that we could call you on or, alternatively, please contact the FOI Contact Officer on (02) 6274 2098 to further discuss your request and how the Department can assist you to resolve your queries.

Best regards,

Alex Vaughan
Legal Officer | Climate Change, Science and Corporate Legal Section
General Counsel Branch | Department of the Environment and Energy

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Note: The contents of any legal advice provided by the General Counsel Branch is subject to legal professional privilege. Do not disclose the contents of any such legal advice more broadly within the Department (i.e. outside the scope of persons to whom the legal advice is (or was) directed), via the intranet or outside the Department without first consulting General Counsel Branch.

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