Amendment to the list of migratory species under section 209 of the Environment Protection and Biodiversity Conservation Act 1999 (14/04/2016) (2)

Legislation au F2016L01009 Not in force Legislative Instrument

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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).

 


 

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was enacted by the Commonwealth Parliament to protect the environment, particularly matters of national environmental significance and biodiversity, including the conservation of listed migratory species. This Act provides a legal framework for the protection of migratory species by including them in a list that is aligned with international agreements such as the Japan-Australia Migratory Bird Agreement (JMBA). The legislative instrument issued under section 209(1)(b) of the Act aims to update the list of migratory species to reflect amendments made to the Annex of the JAMBA, ensuring that the list accurately represents species that migrate between Australia and Japan. The policy objective is to ensure that regulatory decisions are based on current scientific knowledge, thereby reducing unnecessary regulatory impacts and enhancing the efficiency of the regulatory reform process. The instrument was developed following consultations with various federal, state, and territory agencies, as well as scientific authorities, and it became effective on 9 June 2016.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to the protection of the environment, particularly matters of national environmental significance and the conservation of biodiversity, including the protection and conservation of listed migratory species. The Act encompasses individuals, entities, industries, and specific conduct or transactions that may impact the environment, particularly those involving activities that affect migratory species protected under the Act. This legislation operates at the Commonwealth level and is intended to align with international agreements such as the Bonn Convention and the Japan-Australia Migratory Bird Agreement (JMBA), as well as other relevant international agreements approved by the Minister. The legislative instrument under section 209(1)(b) of the Act amends the list of migratory species to reflect changes in international agreements, ensuring the list includes all species required under section 209(3)(b). This includes adding species that regularly and predictably migrate between Australia and Japan and removing species that no longer meet the criteria for inclusion. The amendments to the migratory species list aim to reduce unnecessary regulatory impact and improve the efficiency and effectiveness of environmental regulation by ensuring decisions are based on current knowledge of migratory patterns. The legislative instrument was issued following consultations with relevant Commonwealth, state, and territory agencies, and no concerns were raised regarding the recommended changes.

Key Provisions

The main operative sections of this legislation amend the list of migratory species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to align with changes in the Japan-Australia Migratory Bird Agreement (Jamba). This involves adding three species to the list: the Matsudaira's Storm-petrel (Hydrobates matsudairae), Bulwer's Petrel (Bulweria bulwerii), and the Greater Crested Tern (Thalasseus bergii). Additionally, nine species are removed from the list as they no longer meet the criteria for inclusion based on migratory patterns between Australia and Japan. These changes reflect the updated Annex to JAMBA and ensure that the migratory species list under the Act is current and accurate (sections 209(1)(b) and 209(3)(b)). The Act imposes obligations on relevant parties and entities to comply with the updated list of migratory species. This includes ensuring that any actions that may impact these species are assessed and approved in accordance with the provisions of the Act. For example, persons who wish to undertake activities that may harm listed migratory species must obtain approval from the relevant authorities. This ensures that any actions taken are in line with the objectives of the Act to protect and conserve biodiversity, particularly for species that migrate between Australia and Japan. Breaches of the Act's provisions can result in both civil and criminal penalties. For instance, knowingly or recklessly taking, injuring, or killing a listed migratory species can result in criminal charges. The maximum penalties for individuals can include fines of up to $375,000 or imprisonment for up to five years, or both. For corporations, the penalties can be significantly higher, with fines reaching up to $1.875 million. Additionally, civil penalties can be applied for non-compliance with approval requirements, which can include substantial fines and, in some cases, orders for the remediation of harm caused to migratory species or their habitats. These provisions underscore the importance of adhering to the Act’s requirements to protect Australia’s biodiversity.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.