EXPLANATORY STATEMENT

(Issued under the Authority of the Minister for the Environment)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Instrument under section 209(1)(b)

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) provides for the protection of the environment, especially matters of national environmental significance and the conservation of biodiversity, including the protection and conservation of listed migratory species.

Section 209(1) of the Act provides for a list of migratory species (the List) that are included in Appendices to the Bonn Convention, and in the Annexes to the Japan-Australia Migratory Bird Agreement (JAMBA), the China-Australia Migratory Bird Agreement (CAMBA) or other international agreements approved by the Minister (Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA)).

The purpose of this legislative instrument is to amend the list of migratory species pursuant to section 209(1)(b) of the Act so that the list includes all species required to be included under section 209(3)(b), following amendments to the Annex to the JAMBA. The amendments become effective on 9 June 2016, three months after the date on which Australia and Japan exchanged diplomatic notes (Article I(2)(c) of the JAMBA).

At the 16th JAMBA Consultative Meeting in 2012, Australia proposed the addition of 10 species to the Annex of the JAMBA: Red-tailed Tropicbird (Phaethon rubricauda), Swinhoe’s Storm-Petrel (Hydrobates monorhis), Matsudaira’s Storm-Petrel (Hydrobates matsudairae), Bulwer’s Petrel (Bulweria bulwerii), Little Ringed Plover (Charadrius dubius), Common Redshank (Tringa totanus), Greater Crested Tern (Crested Tern) (Sterna bergii (Thalasseus bergii)), Oriental Reed Warbler (Acrocephalus orientalis), Red-rumped Swallow (Cecropis daurica), and Grey Wagtail (Motacilla cinerea). These species regularly and predictably migrate between Australia and Japan and meet the criteria set under Article I(1) of the JAMBA.

Australia also proposed the removal of 13 species from the Annex of the JAMBA: Northern Shoveler (Anas clypeata), Leach’s Storm-petrel (Oceanodroma leucorhoa), Cattle Egret (Bubulcus ibis (Ardea ibis)), Great Egret (Egretta alba (Ardea alba)), Wandering Albatross (Diomeda exulans), Providence Petrel (Pterodroma solandri), Ringed Plover (Charadrius hiaticula), Western Sandpiper (Calidris mauri), Baird’s Sandpiper (Calidris bairdii), Buff-breasted Sandpiper (Tryngites subruficollis), Grey Phalarope (Phalaropus fulicarius), Black Tern (Chlidonias niger), and Rainbow Bee-eater (Merops ornatus). These 13 species do not migrate between the two countries and were removed from the JAMBA Annex, however, four of these species remain on the Annexes to CAMBA and ROKAMBA.

Of the 10 species added to the Annex of the JAMBA, seven are already afforded protection as listed migratory species under the Act, as provided for in Section 209(3)(b) of that Act. The Matsudaira’s Storm-petrel, Bulwer’s Petrel and Crested Tern are the remaining three species that are required to be added to the list of migratory species under the Act.

The nine species that are being removed from the list of migratory species do not meet the migratory species listing criteria. Their removal will mean that decisions made under Part 9 of the Act (‘Approval of actions’) will be based on an accurate reflection of the current knowledge of migratory birds. In turn this will reduce unnecessary regulatory impact, and contribute to the efficiency and effectiveness of the current regulatory reform process.

The following Commonwealth, state and territory agencies were consulted regarding the recommended amendments to the Annex to the JAMBA:

• Australian Government Department of the Prime Minister and Cabinet
• Australian Government Attorney-General’s Department
• Australian Government Department of the Environment
• Australian Government Department of Foreign Affairs and Trade
• Australian Government Department of Agriculture
• Australian Government Department of Industry
• Australian Government Department of Defence
• Department of Primary Industries, Parks, Water and Environment (Tasmania)
• Department of Environment and Primary Industries (Victoria)
• Office of Environment and Heritage (New South Wales)
• Department of Environment and Heritage Protection (Queensland)
• Department of Environment, Water and Natural Resources (South Australia)
• Department of Land Resource Management (Northern Territory)
• Department of Parks and Wildlife (Western Australia)
• Environment and Sustainable Development Directorate (Australian Capital Territory)

In July 2014, the Minister for the Environment, the Hon Greg Hunt MP, wrote to the Prime Minister and relevant Commonwealth Ministers advising them of the proposed amendments.

Consultation with state and territory representatives from the agencies listed above occurred in 2013 and 2014, through the Wetlands and Waterbirds Taskforce.

No agencies raised any concerns regarding the recommended amendments. Relevant scientific authorities were consulted through Birdlife Australia and Australian universities and were supportive of the amendments.

The Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth).

The Instrument commenced on 9 June 2016.

Authority: section 184(1)(b) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).