EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
Amendment to the list of threatened species made under section 178 of the Environment Protection and Biodiversity Conservation Act 1999 (254)
Background
The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species.
Subsection 178(1) of the Act provides that the Minister must, by legislative instrument, establish a list of threatened species (List) separated into the following categories: Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable and Conservation Dependent.
Paragraph 184(c) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by transferring items within the List in accordance with Subdivision AA.
The species being transferred in the List met the criteria for listing in the relevant category under the EPBC Regulations (see below).
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Transferring Petrogale lateralis kimberleyensis by deleting it from the Vulnerable category in the List and including it in the Endangered category in the List
The main threats affecting the species are predation by introduced species, habitat loss and degradation and its severely restricted distribution.
Subsection 186(1) of the Act provides that the Minister must not include a native species on the List (whether as a result of a transfer or otherwise) in a particular category unless satisfied it is eligible to be included in that category.
Subsection 179(4) of the Act provides that a native species is eligible to be included in the Endangered category at a particular time if, at that time, it is not critically endangered and it is facing a very high risk of extinction in the wild in the near future, as determined in accordance with the prescribed criteria.
The Minister was satisfied the species being transferred in List from the Vulnerable category to the Endangered category met the requisite criteria. Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the Regulations) relevantly provides that for subsection 179 of the Act, a native species is in the critically endangered, endangered or vulnerable category if it meets any of the five criteria for the category mentioned in the table to that provision.
Consultation
The process for making amendments to the List to include or transfer an item is set out in Part 13, Division 1, Subdivision AA of the Act. Consultation was undertaken before the Instrument was made, in accordance with the processes outlined in Part 13, Division 1, Subdivision AA of the Act.
Notice of the proposed amendment and a consultation document was made available for public comment for a minimum of 30 business days as required by subsection 194M(3). Any public comments received that were relevant to the survival of the species were considered by the Threatened Species Scientific Committee (Committee) as part of the assessment process.
The Committee prepared a written assessment of whether the nominated species was eligible for transfer within the List. The Committee assessed the Petrogale lateralis kimberleyensis as eligible for transfer from the Vulnerable category to the Endangered category in the List.
In making this instrument, the Minister considered the Committee’s written assessment and the comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the EPBC Act.
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.
Authority: sections 178 and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999.
Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011 Amendment to the list of threatened species under section 178 of the Environment Protection and Biodiversity Conservation Act 1999 (254) This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Legislative Instrument The purpose of this Instrument is to amend the Environment Protection and Biodiversity Conservation Act 1999 list of threatened species to: - Transfer Petrogale lateralis kimberleyensis by deleting it from the Vulnerable category in the list and including it in the Endangered category in the List.
The species being transferred within the list met the criteria for listing in the relevant category under the EPBC Regulations. Human rights implications This Legislative Instrument does not engage any of the applicable rights or freedoms. Conclusion This Legislative Instrument is compatible with human rights as it does not raise any human rights issues. |
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment and the conservation of biodiversity, including the protection and conservation of threatened species. The Act empowers the Minister to establish and amend a list of threatened species by legislative instrument. One such amendment, F2021L00811, pertains to the transfer of Petrogale lateralis kimberleyensis from the Vulnerable category to the Endangered category in the list. This decision was based on assessments by the Threatened Species Scientific Committee and consultation with the public, ensuring that the criteria for inclusion in the Endangered category were met. The Minister was satisfied that the species faces a very high risk of extinction in the wild in the near future due to threats such as predation by introduced species, habitat loss and degradation, and its severely restricted distribution. The amendment was made in accordance with the legislative requirements of the EPBC Act and was accompanied by a Statement of Compatibility with Human Rights, confirming that the legislative instrument does not engage any of the applicable rights or freedoms.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the protection of the environment and the conservation of biodiversity, including the protection and conservation of threatened species. Under the authority of the Minister for the Environment, the Act mandates the establishment of a list of threatened species, which is categorised into Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Act applies nationally across Australia and extends to all entities and persons that are subject to Commonwealth laws. The Act may also apply extraterritorially to actions of Australian citizens and entities, as well as to actions of non-citizens and entities outside Australia if those actions affect matters declared to be of national environmental significance. The Minister has the power to amend the list of threatened species, which can involve transferring species between categories based on eligibility criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The legislative instrument in question specifically amends the list by transferring Petrogale lateralis kimberleyensis from the Vulnerable category to the Endangered category, following a thorough assessment and consultation process. This amendment does not raise any human rights issues and is compatible with human rights as recognised in international instruments.
Key Provisions
The key provisions of this legislative instrument, F2021L00811, involve amendments to the list of threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 178 of the EPBC Act mandates the Minister to establish and maintain a list of threatened species, divided into categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The instrument seeks to transfer Petrogale lateralis kimberleyensis from the Vulnerable category to the Endangered category. This decision is based on the species facing a very high risk of extinction in the wild in the near future due to threats such as predation by introduced species, habitat loss, and degradation, as well as its severely restricted distribution.
The Act imposes specific obligations on the Minister regarding the management and protection of threatened species. Under section 186(1) of the EPBC Act, the Minister must ensure that a native species is not included in the List unless it is eligible to be listed in the relevant category. Eligibility for listing in the Endangered category is determined under section 179(4), which stipulates that a species must face a very high risk of extinction in the wild in the near future, as per the criteria set out in the EPBC Regulations. In this case, the Threatened Species Scientific Committee assessed Petrogale lateralis kimberleyensis as eligible for transfer to the Endangered category, and the Minister considered this assessment along with public consultation comments.
Violations of the EPBC Act can result in both civil and criminal penalties. Under section 475 of the Act, a person who contravenes a provision of the Act may be subject to a penalty. The maximum penalties for offences can be significant, including fines of up to $210,000 for individuals and $1,050,000 for corporations, depending on the severity of the breach. Additionally, section 507A of the Act allows for the imposition of civil penalties for activities that harm listed threatened species or their habitats. These penalties serve as deterrents against actions that could further endanger the species in question or compromise biodiversity conservation efforts.
The legislative instrument is compliant with human rights as it does not engage any of the rights or freedoms recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement of Compatibility with Human Rights confirms that the instrument does not raise any human rights issues and is thus compatible with the existing human rights framework.