Environment Protection and Biodiversity Conservation Act 1999 - Update of the List of Migratory Species (11/12/2009)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to provide for the protection and conservation of the environment, particularly with respect to matters of national environmental significance. This Act was introduced to address the problem of inadequate protection for migratory species, necessitating a structured approach to their conservation and management. Pursuant to section 209(1)(b) of the EPBC Act, an instrument was issued under the authority of the Minister for the Environment, Heritage and the Arts to amend the list of migratory species. This amendment ensures that the list aligns with the latest changes to Appendix II of the Convention on Migratory Species of Wild Animals (Bonn Convention), reflecting the species that need protection under Australian law. The policy objective is to ensure that Australia's list of migratory species remains current and comprehensive, facilitating effective conservation efforts in line with international obligations.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the Commonwealth and includes obligations to protect and conserve migratory species, with a particular focus on those listed in the appendices of the Convention on Migratory Species of Wild Animals (Bonn Convention). Pursuant to section 209(1)(b) of the Act, this legislation amends the list of migratory species to include all species required to be included under paragraph 209(3)(a), following amendments to Appendix II of the Bonn Convention agreed at the 9th Conference of the Parties held in Rome on 5 December 2008. The changes, which came into effect on 29 January 2010, include the listing of the porbeagle shark, shortfin mako shark, and longfin mako shark as migratory species. The EPBC Act does not provide for any discretion in the inclusion of species from the CMS Appendices on the list of migratory species. The Australian Government Department of the Environment, Water, Heritage and the Arts (DEWHA) engaged in extensive consultations with various Australian Government agencies, state agencies, and industry associations to inform and seek feedback on the proposed listings, with the majority of respondents providing favourable feedback, although some concerns were raised about potential impacts on commercial and recreational fishers. This instrument is a legislative instrument under the Legislative Instruments Act 2003 and represents the formal adoption of the amended migratory species list in Australian law.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) outlines several key provisions, notably under sections 209(1)(a) and 209(3)(a). Section 209(1)(a) requires the establishment and maintenance of a list of migratory species, while section 209(3)(a) mandates the inclusion of all native species listed in the appendices of the Convention on Migratory Species of Wild Animals (Bonn Convention) on this list. The legislative instrument issued under section 209(1)(b) serves to amend the list of migratory species, ensuring it aligns with the updates to Appendix II of the Bonn Convention. This alignment was necessitated by changes agreed upon at the 9th Conference of the Parties held in Rome on 5 December 2008. The amendments to the migratory species list under the Act came into effect on 29 January 2010, reflecting these international updates. Under the Act, the Commonwealth is obligated to protect and conserve migratory species, which includes maintaining an accurate and updated list of these species. This obligation extends to ensuring that the list is periodically reviewed and updated to reflect changes in international agreements, such as the Bonn Convention. The Australian Government Department of the Environment, Water, Heritage and the Arts (DEWHA) is responsible for consulting with relevant stakeholders, including federal and state agencies, as well as industry associations, to ensure that the list is comprehensive and reflects current scientific and conservation needs. These consultations are crucial for gathering feedback and addressing potential concerns raised by stakeholders, such as increased monitoring costs or impacts on commercial and recreational fishers. Breaches of the obligations under the Act could potentially lead to civil or criminal consequences. While the specific offences and penalties are not detailed in the explanatory statement, it is important to note that the Act provides a framework for enforcing environmental protection and biodiversity conservation. Failure to comply with the requirements to maintain and update the list of migratory species could result in legal action, with potential penalties varying depending on the severity and nature of the breach. The Act empowers enforcement agencies to take appropriate action against entities or individuals who fail to adhere to the legislative requirements, thereby ensuring the protection and conservation of migratory species are upheld. The legislative instrument also highlights the importance of consultation and communication with stakeholders. DEWHA engaged with numerous Australian Government agencies, state authorities, and industry associations to gather input on the proposed listings of certain shark species to Appendix II of the Bonn Convention. This engagement process was critical in addressing concerns and ensuring a smooth transition to the updated migratory species list. The department also took steps to inform fisheries management agencies, peak industry groups, and state and territory governments of the impending changes and their implications. Public notices and fact sheets were distributed, and information was placed on the department’s website to ensure transparency and facilitate understanding of the changes among all relevant parties.