EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 209(1)(b)
Addition of the roseate tern to the list of migratory species
(Issued under the Authority of the Minister for the Environment, Heritage, and the Arts)
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) places certain obligations on the Commonwealth to protect and conserve migratory species, including a requirement for the establishment and maintenance of a list of migratory species under paragraph 209(1)(a) of the Act.
Paragraph 209(3)(b) of the Act requires that the list of migratory species includes all species from time to time included in lists established under the Japan – Australia Migratory Bird Agreement (JAMBA) and the China – Australia Migratory Bird Agreement (CAMBA).
The purpose of this instrument is to amend the list of migratory species pursuant to paragraph 209(1)(b) of the Act so that the list includes all species required to be included under paragraph 209(3)(b), following amendments to the Annex to the JAMBA. The amendments will come into effect on 23 March 2009, three months after the date on which Diplomatic notes were exchanged.
The following Australian Government, State and Territory agencies were consulted regarding the amendments to the Annexes to the JAMBA:
- Australian Government Attorney-General’s Department;
- Australian Government Department of Immigration and Multicultural Affairs;
- Australian Government Department of Foreign Affairs and Trade;
- Australian Government Department of Communications, Information Technology and the Arts;
- Australian Government Department of Industry, Tourism and Resources;
- Australian Government Department of Defence;
- Australian Government Department of the Prime Minister and Cabinet;
- Australian Government Department of Transport and Regional Services;
- Australian Government Department of the Treasury;
- Australian Government Department of Agriculture, Fisheries and Forestry;
- Department of Primary Industries Water and Environment (Tasmania);
- Department of Primary Industries (Victoria);
- Department for Environment and Heritage (South Australia);
- Department of Conservation and Land Management (Western Australia);
- Department of Environment and Conservation (New South Wales);
- Department of Infrastructure, Planning and Natural Resources (New South Wales);
- Environmental Protection Agency (Queensland);
- Department of Natural Resources, Environment and the Arts (Northern Territory); and
- Environment ACT.
In July 2006, the then Minister for the Environment and Heritage, the Hon Ian Campbell, wrote to relevant Federal Ministers seeking their agreement to the proposed amendments.
The Australian Government Department of the Environment, Water, Heritage and the Arts consulted with the Natural Resource Management Wetlands and Waterbirds Taskforce, which comprises representatives from the state and territory agencies listed above. In addition, the Department of the Environment, Water, Heritage and the Arts, provided a paper to the Taskforce meeting in November 2004 summarising the state of affairs for Australia’s bilateral migratory bird agreements. This paper included the proposed amendments to the Annexes to the JAMBA.
No agencies raised any concerns regarding the proposed amendments. The Queensland Environmental Protection Agency had a particular interest in the addition of the roseate tern to the Annex, as it was research carried out by their staff which determined that roseate terns regularly migrate between Australia and Japan. As a result, they were particularly supportive of the addition of the roseate tern to the Annexes to both JAMBA.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This instrument commenced on the 23 March 2009.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted by the Commonwealth Parliament to provide for the protection and conservation of biodiversity, including migratory species, and to address the problem of inadequate protection for species that migrate across international borders. This legislative instrument, issued under the authority of the Minister for the Environment, Heritage, and the Arts, serves to amend the list of migratory species in accordance with international agreements, specifically the Japan – Australia Migratory Bird Agreement (JAMBA) and the China – Australia Migratory Bird Agreement (CAMBA). The policy objective is to ensure that Australia’s list of protected migratory species is consistent with those listed in the international agreements, thereby providing a unified and effective framework for the conservation of these species. This amendment, which includes the addition of the roseate tern to the list, reflects Australia’s commitment to its international obligations and aims to enhance the protection of migratory species within its jurisdiction.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to the Commonwealth and involves the protection and conservation of migratory species within Australia and its territories. This Act requires the establishment of a list of migratory species, which is mandated to include all species listed under the Japan – Australia Migratory Bird Agreement (JAMBA) and the China – Australia Migratory Bird Agreement (CAMBA). This legislative instrument, issued under the authority of the Minister for the Environment, Heritage, and the Arts, amends the list of migratory species to include the roseate tern following amendments to the JAMBA Annex. The instrument reflects the agreements made by various Australian Government departments and state/territory agencies, including consultations with the Natural Resource Management Wetlands and Waterbirds Taskforce. No concerns were raised by the agencies regarding these amendments. This instrument commenced on 23 March 2009, and it is a legislative instrument as defined by the Legislative Instruments Act 2003.
Key Provisions
The key provisions of the legislation, as outlined in the Explanatory Statement, involve amending the Environment Protection and Biodiversity Conservation Act 1999 to add the roseate tern to the list of migratory species (subsection 209(1)(b)). This change follows updates to the Annex of the Japan–Australia Migratory Bird Agreement (Jamba) (subsection 209(3)(b)). The roseate tern, now recognised as a migratory species under this legislation, is included in the list to ensure its protection and conservation as mandated by the Act. This amendment reflects the agreement's commitment to protecting migratory species that travel between Australia and Japan.
The Act imposes specific obligations on the Commonwealth to protect and conserve migratory species, including maintaining a list of such species under subsection 209(1)(a). The inclusion of species in this list, as outlined in subsection 209(3)(b), is critical for ensuring these species receive the necessary protection and management. The roseate tern's addition to the list means that both federal and state/territory agencies must now take measures to protect this species within their jurisdictions. This includes monitoring, habitat preservation, and implementing conservation strategies to ensure the species' survival.
Under the Environment Protection and Biodiversity Conservation Act 1999, breaches of the provisions related to the protection of listed migratory species can lead to significant consequences. Offences involving the unlawful killing, harming, or trading of protected species can result in both civil and criminal penalties. The Act provides for substantial fines, with maximum penalties outlined in the relevant sections of the legislation. Civil penalties can include fines of up to $66,000 for individuals and $330,000 for corporations, while criminal penalties can result in imprisonment for up to five years for individuals and higher fines for corporations. These penalties underscore the seriousness with which the Act treats the protection of migratory species and the importance of compliance with its provisions.