Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment and conservation of biodiversity, including threatened species. The Act establishes a list of threatened species categorised by their conservation status. Under sections 178 and 184(a) and (c) of the EPBC Act, the Minister for the Environment has the authority to amend this list, which was done through legislative instrument F2020L01211 to address identified conservation needs. This particular legislative instrument seeks to include Rhizanthella johnstonii in the Critically Endangered category and transfer Rhizanthella gardneri from the Endangered to the Critically Endangered category, actions taken in consultation with the Threatened Species Scientific Committee and in accordance with the Act’s provisions. The instrument aims to ensure appropriate conservation measures are in place for these species, reflecting their current risk status and contributing to broader biodiversity conservation objectives.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999, through its amendment to the list of threatened species, governs the protection of species that are at risk of extinction or critically endangered within Australia. This legislative instrument applies to all individuals, entities, and industries within the Commonwealth of Australia that engage in activities affecting threatened species, particularly Rhizanthella johnstonii and Rhizanthella gardneri. The amendment includes the addition of Rhizanthella johnstonii to the Critically Endangered category and the transfer of Rhizanthella gardneri from the Endangered to the Critically Endangered category, thereby extending the legal protections afforded to these species. The Act’s jurisdiction is national, ensuring uniform application across all states and territories. The legislative instrument does not specify exclusions or exemptions but operates under the overarching provisions of the Act, which may include specific exclusions for certain activities under particular conditions. The application and enforcement of these provisions can be further detailed through subordinate instruments, which may provide additional guidelines or clarifications on the implementation of the Act.

Key Provisions

The main operative sections of this legislation pertain to the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) list of threatened species. Section 178 establishes the list of threatened species, which is divided into categories such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(a) empowers the Minister to amend the list by legislative instrument to include items, while section 184(c) allows for the transfer of items between categories within the list. In this instance, the list has been amended to include Rhizanthella johnstonii in the Critically Endangered category and to transfer Rhizanthella gardneri from the Endangered category to the Critically Endangered category (sections 184(a) and 184(c)). The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, it mandates consultation with relevant stakeholders before amendments to the list are made. This includes consulting with the Threatened Species Scientific Committee, researchers from Australian universities, state and territory governments, and non-government organisations. The Committee is responsible for preparing written assessments of whether nominated species are eligible for inclusion in the list, which are then considered by the Minister (section 184). Additionally, the Act requires public consultation for at least 30 business days to gather comments on proposed changes to the list (Part 13, Division 1, Subdivision AA of the Act). These processes ensure that amendments are made based on expert opinion and public feedback. Breaches of the Act can lead to various offences, penalties, or civil and criminal consequences. However, the specific provisions related to offences, penalties, and consequences are not detailed in the explanatory statement. Generally, the Act includes provisions for offences related to the unauthorised taking, harming, or trading of threatened species, which can result in fines and imprisonment. The maximum penalties can vary depending on the nature and severity of the offence, with some provisions carrying fines of up to $222,000 and imprisonment for up to five years (sections 477 and 478 of the Act). Furthermore, the Act may also impose civil penalties for breaches, which can include significant fines for corporations. It is important to refer to the specific sections of the Act for detailed information on penalties and consequences.