Overview

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) was enacted to provide a framework for the protection of the environment and biodiversity, including the conservation of threatened species and ecological communities. The Act mandates the responsible Minister to establish and amend lists of threatened species, ecological communities, and key threatening processes. To facilitate the nomination process and ensure that resources are efficiently allocated, Section 194D of the Act allows the Minister to determine one or more conservation themes that should be prioritised during an assessment period. This legislative instrument sets the conservation theme for the assessment period commencing 1 October 2021, focusing on "Species and ecological communities that require listing or transfer to a higher listing category as a result of the impacts of the 2019/20 bushfires." This determination was made after considering advice from the Threatened Species Scientific Committee, and as the setting of the theme does not preclude other nominations, public consultation was deemed unnecessary.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) applies to the protection and conservation of the environment and biodiversity across Australia, encompassing all persons, entities, and industries within its jurisdiction. Under this Act, the responsible Minister is mandated to establish and amend lists of threatened species, threatened ecological communities, and key threatening processes. The Act extends its reach to the entire Commonwealth of Australia, ensuring that environmental conservation efforts are uniformly regulated and enforced across all states and territories. The Act may also extend its application through subordinate instruments, which can provide additional details or specific regulations pertaining to its provisions. In this instance, the Act identifies a conservation theme prioritising species and ecological communities affected by the 2019/20 bushfires for the assessment period commencing 1 October 2021, which allows for focused efforts on those areas most impacted by recent environmental disasters.

Key Provisions

The primary operative sections of the legislation (sections 194D(1) and 194D(4) of the Environment Protection and Biodiversity Conservation Act 1999) empower the responsible Minister to establish conservation themes that should be given priority for the assessment period in relation to the nomination and listing of threatened species, threatened ecological communities, and key threatening processes. Section 194D(1) allows the Minister to determine one or more conservation themes, while section 194D(4) specifies that disallowance does not apply to the instrument setting these themes. In this case, the conservation theme determined for the assessment period commencing 1 October 2021 is ‘Species and ecological communities that require listing or transfer to a higher listing category as a result of the impacts of the 2019/20 bushfires’. This means that the focus for nominations and listings during this period will be on species and communities affected by the bushfires, aiming to ensure their protection and conservation. The Act imposes several obligations on the parties involved, including the Minister, who must establish the conservation theme for the nomination and listing process. Additionally, the Minister must consider advice from the Threatened Species Scientific Committee, as outlined in section 194D(3) of the Act. This requirement ensures that the determination of the conservation theme is informed by expert scientific advice. Furthermore, the Minister must be satisfied, in accordance with section 17(1)(a) of the Legislation Act 2003, that any necessary consultation has been undertaken. In this instance, public consultation was deemed unnecessary because the setting of the conservation theme does not preclude nominations of any species, ecological community, or key threatening process. The legislation does not explicitly detail specific offences, penalties, or consequences for breach. However, it is implicit that failure to comply with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 could result in legal consequences. For example, non-compliance with the Act's provisions for the protection and conservation of threatened species and communities could lead to civil or criminal penalties as stipulated in other sections of the Act. Additionally, the Minister’s failure to adhere to the advice from the Threatened Species Scientific Committee might also be subject to scrutiny or legal challenge. The exact nature and severity of penalties would depend on the specific provisions of the Act and other relevant legislation that apply to the circumstances of the breach.