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 the protection and conservation of threatened species, ecological communities, and the abatement of key threatening processes. The Act requires the Minister to establish and amend lists of threatened species, threatened ecological communities, and key threatening processes, and provides for the nomination and listing of these items. The Environment Protection and Biodiversity Conservation (2023 conservation theme for prioritising nominations of threatened species, threatened ecological communities and key threatening processes) Determination 2022 was made under section 194D of the EPBC Act and identifies ‘species and ecological communities threatened by extreme weather events’ as the conservation theme for the assessment period commencing 1 October 2023. This determination was made after consultation with the Threatened Species Scientific Committee, and the Minister was satisfied that further consultation was not required as the determination does not impose additional restrictions, obligations or preclude the rights of any person. The determination is a discretionary consideration in the nomination and listing process.

Scope and Application

The Environment Protection and Biodiversity Conservation (2023 conservation theme for prioritising nominations of threatened species, threatened ecological communities and key threatening processes) Determination 2022 applies under the Environment Protection and Biodiversity Conservation Act 1999. This Act governs the protection of the environment and conservation of biodiversity across Australia, including the protection and conservation of threatened species and ecological communities, and the abatement of key threatening processes. The determination specifies that for the assessment period commencing 1 October 2023, the conservation theme to be prioritised is "species and ecological communities threatened by extreme weather events." The Minister for the Environment and Water has the authority to establish such conservation themes, which serve as a discretionary consideration for the Threatened Species Scientific Committee when preparing proposed priority assessment lists. While the determination itself does not impose additional restrictions or obligations, or preclude any rights of individuals or entities, it guides the focus of assessments and nominations under the Act. The instrument is exempt from disallowance and does not require a statement of compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not apply additional restrictions or obligations.

Key Provisions

The primary sections of this legislation (section 194D) empower the Minister to designate one or more conservation themes that should be prioritised in relation to a 12-month assessment period for nominating species, ecological communities, and key threatening processes. The main focus of the 2023 conservation theme is on species and ecological communities threatened by extreme weather events, as set out in the Environment Protection and Biodiversity Conservation (2023 conservation theme for prioritising nominations of threatened species, threatened ecological communities and key threatening processes) Determination 2022. This determination specifies that for the assessment period commencing 1 October 2023, the Minister has identified this theme as a priority. It is important to note that the determination of a conservation theme is a discretionary step in the nomination and listing process, and it does not preclude nominations of other species, ecological communities, or key threatening processes. The obligations imposed by this legislation on parties and entities are primarily informational and procedural. The Minister is required to consider advice from the Threatened Species Scientific Committee when determining conservation themes (section 194D(3)). This ensures that the determinations are informed by scientific expertise. Additionally, the Threatened Species Scientific Committee has a role in preparing a proposed priority assessment list, where conservation themes are a discretionary consideration (subsection 194G(2)). The Act also mandates that the rule-maker be satisfied that appropriate consultation has taken place before making the legislative instrument, although in this case, the rule-maker determined that no further consultation was necessary because the determination does not impose additional restrictions, obligations, or rights. In terms of consequences for breach, the legislation specifies that this instrument is not subject to the disallowance process outlined in section 42 of the Legislation Act 2003. Consequently, no offences are defined within this instrument itself, and there are no explicit penalties for non-compliance. However, any actions taken under the Environment Protection and Biodiversity Conservation Act 1999 that contravene its provisions could result in legal consequences, including fines and imprisonment, as per the general provisions of the Act. The determination of a conservation theme is a technical and scientific step in the decision-making process and does not, in itself, create new obligations or restrict the rights of any person.