Overview

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) was introduced to provide comprehensive protection and conservation of the environment and biodiversity in Australia, including the protection of threatened species. The Act enables the Minister for the Environment to establish and amend a list of threatened species through legislative instruments, categorising them into various levels of threat such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Recently, the Act was amended to transfer Diuris aequalis from the Vulnerable category to the Endangered category, reflecting its precarious geographic distribution and the need for enhanced protection and recovery efforts. The decision was made following consultations with the Threatened Species Scientific Committee and public comments, ensuring the species' eligibility and the alignment with the policy objectives of the Act. The amendment aims to safeguard the species from a very high risk of extinction in the wild in the near future, facilitating Commonwealth investment in its recovery. This legislative instrument is compatible with human rights, having undergone scrutiny under the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the protection of the environment and conservation of biodiversity in Australia, including the protection and conservation of threatened species. The Act establishes a list of threatened species, divided into categories such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Under section 178 of the EPBC Act, the Minister for the Environment is required to establish this list by legislative instrument, and under section 184(c), the Minister may amend the list by transferring species between categories. The geographic and jurisdictional reach of the Act extends across the Commonwealth, affecting all entities and persons within Australia. The Act applies to native species and their habitats, regardless of whether they are located on public or private land, provided the activities impacting the species are within the Commonwealth’s legislative power. The Act does not specify exclusions, but it does provide for exemptions and thresholds in certain circumstances, such as through subordinate instruments or specific regulations. The purpose of the legislative instrument in question is to amend the list of threatened species by transferring Diuris aequalis from the Vulnerable category to the Endangered category, thereby recognising the very high risk of extinction in the wild faced by this species. This amendment follows consultations with the Threatened Species Scientific Committee and public comments, ensuring that the species meets the prescribed criteria for inclusion in the Endangered category.

Key Provisions

The main operative sections of this legislative instrument pertain to amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 178(1) of the Act requires the Minister to establish a list of threatened species, which is separated into categories such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(c) of the Act allows the Minister to amend the list by transferring items within the list, such as moving species between categories. In this instance, section 179(4) of the Act, which stipulates the eligibility criteria for the Endangered category, and Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000, which provides the criteria for categorisation, are particularly relevant. Under these provisions, the Minister has transferred Diuris aequalis from the Vulnerable category to the Endangered category. The Act imposes various obligations on the parties and entities it governs, including the requirement for the Minister to consult with the Threatened Species Scientific Committee when considering amendments to the list of threatened species. The Minister must also consider any public comments received during the consultation period. The Minister must be satisfied that the species meets the eligibility criteria for the new category before any transfer can be made. In this case, the Minister was satisfied that Diuris aequalis met the criteria for being listed as Endangered, based on the Scientific Committee’s assessment and the comments received during the consultation period. Breaches of the Act can lead to both civil and criminal consequences. For example, subsection 186(1) of the Act states that the Minister must not include a native species on the List in a particular category unless satisfied it is eligible to be included in that category. Violation of this provision may result in penalties under the Act. Although the maximum penalties for breaches are not specified in the explanatory statement, the Act generally allows for penalties of up to $66,600 for individuals and $333,000 for corporations for offences such as damaging listed species or their habitats. Additionally, breaches of the Regulations may also incur civil penalties. It is important to note that any enforcement action would need to be consistent with the relevant provisions of the EPBC Act and the Regulations.