REPLACEMENT EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 184(a)
(Issued under the Authority of the Minister for the Environment)
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) places certain obligations on the Commonwealth to protect and conserve threatened ecological communities.
The purpose of this instrument is to amend the list of threatened ecological communities under section 181 of the Act in accordance with paragraph 184(a) of the Act by including in the list in the critically endangered category:
- Elderslie Banksia Scrub Forest in the Sydney Basin Bioregion
as recommended by the Threatened Species Scientific Committee (the Committee), having regard to their eligibility for the critically endangered category under subsection 182(1) of the Act.
The Committee concluded that the Elderslie Banksia Scrub Forest in the Sydney Basin Bioregion met the criteria specified in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as critically endangered because it has undergone a very severe decline in geographic extent;
- Criterion 2 as critically endangered because its geographic distribution is very restricted and subject to significant ongoing threats that could cause it to be lost in the immediate future;
- Criterion 4 as critically endangered because it has undergone a very severe reduction in integrity as a consequence of modification to the ecological community and its surrounding landscape, and the potential for successful restoration in the immediate future is low.
The schedule to the Legislative Instrument describes the location of the Elderslie Banksia Scrub Forest in the Sydney Basin Bioregion with reference to the Interim Biogeographical Regionalisation of Australia (IBRA) Version 7. The data layers associated with IBRA7 may be accessed free of charge from https://www.environment.gov.au/land/nrs/science/ibra.
On the basis of the assessment and advice of the Committee, I am satisfied that this ecological community is eligible to be included in the critically endangered category. In deciding to include it in the list, I only considered matters that relate to whether the ecological community is eligible to be included in that category, and the effect that including the ecological community in that category could have on the survival of the ecological community.
Consultation to amend the list of threatened ecological communities under the Act to include the ecological community was undertaken before the legislative instrument was made in accordance with the process outlined in Part 13, Division 1, Subdivision AA of the Act. A draft assessment was placed on public exhibition, and public comments were sought as required by the Act. Parties with relevant expertise were directly consulted regarding their views. All public submissions received were forwarded to the Committee and to me for consideration.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
The instrument will commence on the day after it is registered on the Federal Register of Legislation.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) was enacted by the Commonwealth Parliament to address the protection and conservation of threatened ecological communities across Australia. This legislation was introduced to fill the gap in comprehensive protection of Australia's biodiversity, ensuring that critical habitats and species receive the necessary safeguards to prevent their decline and extinction. The Act establishes obligations on the Commonwealth to manage and protect these communities, including those that are threatened. In line with the policy objective to enhance the protection of endangered ecological communities, this Act has been amended to include the Elderslie Banksia Scrub Forest in the Sydney Basin Bioregion in the critically endangered category, following the recommendation of the Threatened Species Scientific Committee. This amendment aims to address the severe decline in geographic extent, restricted distribution, and integrity of the ecological community, recognising its critical status and the imminent threat of its loss.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) applies to various entities and individuals with responsibilities concerning the protection and conservation of biodiversity in Australia. This Act primarily affects federal departments, agencies, and corporations involved in activities that may impact threatened species and ecological communities. It also extends to individuals and entities conducting activities that require approval under the Act, including actions that may have a significant impact on listed threatened species or ecological communities. The geographic reach of the Act is national, applying across Australia, and it includes territories and external matters as specified under the legislation. However, certain exclusions and exemptions apply, particularly regarding state-specific matters unless they are of national environmental significance. The Act’s application can be extended or restricted through subordinate instruments, such as regulations and guidelines, which provide detailed provisions on how the Act is to be implemented and enforced.
Key Provisions
The primary operative sections of the instrument are sections 181, 182, 184, and the associated schedule, which together detail the amendments to the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Specifically, section 181 empowers the Minister to amend the list of threatened ecological communities, while section 182 sets out the criteria for listing ecological communities as threatened, including the critically endangered category. Section 184(a) allows the Minister to make a legislative instrument for the purpose of amending the list, and the schedule to the instrument specifies the location and details of the Elderslie Banksia Scrub Forest in the Sydney Basin Bioregion, which is being added to the list. This addition is based on the recommendation of the Threatened Species Scientific Committee, which assessed the ecological community against the criteria specified in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000.
The Act imposes specific obligations on parties and entities regarding the protection and conservation of threatened ecological communities. Under section 183, it is an offence to take an action that is likely to have a significant impact on a listed threatened ecological community. This means that any proposed activities that might affect the Elderslie Banksia Scrub Forest must be assessed under the Act to ensure they do not harm the ecological community. Section 184 mandates that the Minister must make a legislative instrument to amend the list of threatened ecological communities, as seen in this case, following the advice of the Threatened Species Scientific Committee. Furthermore, section 180 requires the Minister to take into account the effect that listing an ecological community could have on its survival, which was considered in the decision to list the Elderslie Banksia Scrub Forest as critically endangered.
The Act also establishes consequences for breaches of its provisions. Under section 190, any person who contravenes the Act may be subject to civil or criminal penalties, depending on the nature and severity of the offence. For example, section 191(1) imposes a maximum penalty of two years imprisonment or a fine of up to $210,000, or both, for actions that result in the destruction of a threatened ecological community. Section 191(2) provides for higher penalties if the offence is committed against a community listed as critically endangered, reflecting the severe risk to the survival of such communities. The Act also includes provisions for the recovery of costs incurred by the Commonwealth in taking enforcement actions under section 197, ensuring that those responsible for harming threatened ecological communities contribute to the cost of their conservation and recovery.