Amendment to the list of migratory species under section 209 of the Environment Protection and Biodiversity Conservation Act 1999 (18/6/2015)

Legislation au F2015L00872 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 CAMBA. The amendments become effective on 30 June 2015, 90 days after the date on which Australia and China exchanged diplomatic notes (Article I(2)(c) of the CAMBA).

 

At the 10th CAMBA Consultative Meeting in 2012, Australia proposed the addition of 10 species to the Annex of the CAMBA: the Red-tailed Tropicbird (Phaethon rubricauda), Swinhoe’s Storm-Petrel (Hydrobates monorhis), Short-tailed Shearwater (Ardenna tenuirostris), Pacific Golden Plover (Pluvialis fulva), Oriental Plover (Charadrius veredus), Arctic Jaeger (Stercorarius parasiticus), Long-tailed Jaeger (Stercorarius longicaudus), Gull-billed Tern (Gelochelidon nilotica), Roseate Tern (Sterna dougallii) and Oriental Reed Warbler (Acrocephalus orientalis). These species regularly and predictably migrate between Australia and China and meet the criteria set under Article I(1) of the CAMBA.

 

Australia also proposed the removal of 28 species from the Annex of the CAMBA: the Northern Shoveler (Anas clypeata), Leach’s Storm-Petrel (Oceanodroma leucorhoa), Sooty Shearwater (Puffinus griseus), Yellow Bittern (Ixobrychus sinensis), Great Egret (Egretta alba), Cattle Egret (Ardeola ibis (Bubulcus ibis)), Eastern Reef Egret (Egretta sacra), Glossy Ibis (Plegadis falcinellus), White-bellied Sea Eagle (Haliaeetus leucogaster), Sarus Crane (Grus antigone), Red-legged Crake (Rallina fasciata), Corncrake (Crex crex), Lesser Golden Plover (Pluvialis dominica), Ringed Plover (Charadrius hiaticula), Caspian Plover (Charadrius asiaticus), Pheasant-tailed Jacana (Hydrophasianus chirurgus), Painted Snipe (Rostratula benghalensis), Latham’s Snipe (Capella hardwickii (Gallinago hardwickii)), Eurasian Curlew (Numenius arquata), Dunlin (Calidris alpina), Grey Phalarope (Phalaropus fulicarius), Caspian Tern (Hydroprogne tschegrava), Black Tern (Chlidonias niger), Lesser Crested Tern (Sterna bengalensis), Great Reed-Warbler (Acrocephalus arundinaceus), Arctic Willow Warbler (Phylloscopus borealis), Yellow-headed Wagtail (Motacilla citreola) and White Wagtail (Motacilla alba). These species do not migrate between the two countries and were removed from the Annex, however, a number of these species remain on the Annexes to JAMBA and ROKAMBA.

 

Of the 10 species added to the Annex of the CAMBA, six are already afforded protection as listed migratory species under the Act, as provided for in Section 209(3)(b) of that Act. The Oriental Reed Warbler, Red-tailed Tropicbird, Gull-Billed Tern and Swinhoe’s Storm Petrel are the remaining four species that are required to be added to the list of migratory species under the Act.

 

The 17 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 CAMBA:

 

  • 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, 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 30 June 2015.

 

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 Australian Parliament to protect the environment, particularly matters of national environmental significance and the conservation of biodiversity, including the protection and conservation of listed migratory species. The Act addresses the problem of inadequate protection for migratory species by establishing a comprehensive framework for their conservation, particularly in relation to international agreements such as the China-Australia Migratory Bird Agreement (CAMBA). This legislative instrument amends the list of migratory species under section 209(1)(b) of the Act, incorporating changes made to the Annex of the CAMBA. The policy objective is to ensure that the list of protected migratory species reflects the most current scientific knowledge and international agreements, thereby enhancing the effectiveness of environmental protection measures. The amendments were made following consultations with relevant Australian and international agencies and were supported by scientific authorities.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to the protection of the environment, with a particular focus on matters of national environmental significance and the conservation of biodiversity, including listed migratory species. This Act applies to all persons and entities within the Commonwealth, encompassing individuals, corporations, and any other legal persons, as well as their conduct and transactions that may impact the environment. The Act's jurisdiction extends across Australia, ensuring a national approach to environmental protection. However, certain exclusions and exemptions may apply, as specified within the Act or through subordinate instruments. The Act allows for the creation of additional regulations and guidelines to further define its scope and application, thereby extending or restricting its application as necessary to address emerging environmental challenges.

Key Provisions

The main operative sections of this legislative instrument (F2015L00872) are those that amend the list of migratory species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Specifically, Section 1 of the instrument amends the list of migratory species to include the Oriental Reed Warbler (Acrocephalus orientalis), Red-tailed Tropicbird (Phaethon rubricauda), Gull-billed Tern (Gelochelidon nilotica), and Swinhoe’s Storm-Petrel (Hydrobates monorhis) and to exclude 17 species that no longer meet the migratory species listing criteria. This amendment is in accordance with changes to the Annex of the China-Australia Migratory Bird Agreement (CAMBA) and ensures the Act's migratory species list reflects current international agreements and scientific understanding. The Act imposes several obligations and requirements on the parties it governs. Firstly, it mandates that the list of migratory species must be kept up to date with international agreements like CAMBA. This means that any changes to the migratory species list under such agreements must be incorporated into the Act. Secondly, relevant authorities, including federal, state, and territory agencies, must be consulted before any amendments are made. Thirdly, the amendment process must align with the provisions of the Legislative Instruments Act 2003 (Cth). Additionally, the Act requires that decisions regarding the approval of actions affecting listed migratory species be based on accurate and current knowledge. Failure to comply with the Act’s provisions can result in both civil and criminal consequences. The Act provides for penalties for actions that harm listed migratory species or their habitats. For instance, Section 475 of the Act outlines that a person can be fined up to $360,000 for an individual offence or $1.8 million for a corporate offence for damaging listed migratory species or their habitats. Additionally, imprisonment terms can be imposed, with maximum penalties of up to five years for individuals and up to seven years for corporations. These penalties underscore the seriousness with which the Act treats the protection and conservation of listed migratory species. In summary, the legislative instrument under section 209(1)(b) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) updates the list of migratory species to reflect current international agreements, imposes obligations on relevant authorities to consult and ensure compliance with these agreements, and establishes significant penalties for non-compliance. These provisions and consequences are designed to protect and conserve biodiversity, particularly for migratory species that traverse international borders.

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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.