EXPLANATORY STATEMENT
Issued by the Authority of the Minister for the Environment and Water
Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC185)) Instrument 2026
Legislative authority
The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection of the environment and the conservation of biodiversity, including the protection and conservation of threatened ecological communities.
Subsection 181(1) of the Act provides that the Minister must, by legislative instrument, establish a list of threatened ecological communities divided into the following categories: critically endangered; endangered; and vulnerable. This list referred to in subsection 181(1) of the EPBC Act is contained in the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes (the List).
Paragraph 184(a) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List by including items in the List in accordance with Part 13, Division 1, Subdivision AA of the Act.
Subsection 182(2) of the Act provides that an ecological community is eligible to be included in the Endangered category at a particular time if, at that time, it is facing a very high risk of extinction in the wild in the near future, as determined in accordance with the prescribed criteria.
Subsection 187(1) of the Act provides that the Minister must not include an ecological community in a particular category unless satisfied that the ecological community is eligible to be included in that category.
Subsection 187(2) of the Act provides that in deciding whether to include an ecological community in a particular category, the only matters the Minister may consider are matters relating to whether the ecological community is eligible to be included in that category or the effect that including the ecological community in that category could have on the survival of the ecological community.
Part 13, Division 1, Subdivision AA of the Act sets out the process for nominating ecological communities for inclusion in the list, including the consideration and assessment of nominations by the Threatened Species Scientific Committee (Committee). Relevantly, subsection 194Q provides that the Minister must have regard to the Committee’s assessment of an item under section 194N and either include the item in the list, or decide in writing not to include it.
Regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2025 (the Regulations) provides that for the purposes of section 182 of the Act, an ecological community is in the Critically Endangered, Endangered or Vulnerable category if it meets any of the 6 criteria for the category mentioned in the table to that provision.
Purpose of the Instrument
The purpose of this instrument is to amend the List by including in the endangered category: Alpine Ash forests of mainland Australia, as recommended by the Threatened Species Scientific Committee (Committee), having regard to its eligibility for the endangered category under subsection 182(2) of the Act.
The Committee concluded that the Alpine Ash forests of mainland Australia ecological community met the criteria specified in specified in regulation 7.02 of the Regulations, as follows:
- Criterion 3 as vulnerable due to the substantial decline of mature Eucalyptus delegatensis subsp. delegatensis that play a major role in the community functioning. Around 50% of the ecological community is currently in an immature state and at risk of loss or decline if burnt within the next 15 years (20 years since the 2019-2020 fires).
- Criterion 4 as endangered because several threatening processes have severely impacted the integrity of the ecological community and important community processes and its ability to recover, and
- Criterion 5 as endangered because the rate of the severe continuing decline of Alpine Ash forest (modelled decline of average of 45% (with estimates ranging from 35% to 58%) across its range within a 60-year period).
On the basis of the assessment and advice of the Committee, the Minister was satisfied that the requisite criteria were met for including the Alpine Ash forests of mainland Australia in the Endangered category within the List.
In deciding to include it in the List, the Minister only considered matters that relate to whether the ecological community is eligible to be included in that category, and the effect that including the ecological community in that category could have on the survival of the ecological community. This included a detailed description of the ecological community in the draft conservation advice. This detailed description will be included in the approved conservation advice on the department’s Species Profile and Threats Database - EPBC Act List of Threatened Ecological Communities at https://www.environment.gov.au/cgi-bin/sprat/public/publiclookupcommunities.pl
Consultation
The process for making amendments to the List to include an item is set out in Part 13, Division 1, Subdivision AA of the Act. Consultation was undertaken before the Instrument was made, in accordance with the processes outlined in Part 13, Division 1, Subdivision AA of the Act.
A draft assessment was placed on public exhibition for a minimum of 30 business days as required by subsection 194M(3) of the Act, and public comments were sought as required by the Act. Parties with relevant expertise were directly consulted regarding their views. All public submissions received were considered by the Committee and forwarded to the Minister for consideration.
In making this Instrument, the Minister considered the Committee’s written assessment and any comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the EPBC Act.
Given the extensive consultation undertaken on the proposed listing contained in the legislative instrument, it was not necessary to consult on the text of the instrument itself.
Details/ Operation
Details of the Instrument are set out in Attachment A.
Other
The Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
The Instrument is an amendment instrument made under section 184 of the Act. It is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
The Instrument commences the day after registration.
Sunsetting and disallowance requirements
The Instrument is subject to the disallowance process under section 42 of the Legislation Act and the sunsetting regime set out in Part 4 of Chapter 3 of the Legislation Act. However, section 48A of the Legislation Act has the effect that, because the Instrument only amends another instrument, if it is not disallowed it will be automatically repealed at the end of the disallowance period. Once repealed, the sunsetting regime has no practical effect on the Instrument.
The List amended by the Instrument is exempt from sunsetting in accordance with table item 24 in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015, which specifies that sunsetting requirements do not apply to instruments made under sections 178, 181 or 183 of the EPBC Act. This sunsetting exemption has applied to the List since the sunsetting regime was established by the Legislation Act on 1 January 2005. This means that the amendments given effect by the Instrument will be enduring.
The List is not appropriate for sunsetting, to ensure threatened species have ongoing regulatory protection under the Act. Species on the list may be threatened beyond 10 years and require continued protection through conservation advice, recovery plans and the assessment and approval processes under the Act. Amendments are made to the list following a stringent statutory review process set out in the Act, which provides an appropriate review mechanism to ensure the currency and accuracy of the List.
ATTACHMENT A
Details of the Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC185)) Instrument 2026
Section 1 – Name
This section provides that the title of the instrument is the Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC185)) Instrument 2026 (the Instrument).
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered.
Section 3 – Authority
This section provides that the Instrument is made under section 184 of the Environment Protection and Biodiversity Conservation Act 1999.
Section 4 – Schedules
This section is a machinery clause which provides that the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes (Principal Instrument) is amended as set out in the applicable items in Schedule 1, and any other item in Schedule 1 to the Instrument has effect according to its terms.
Schedule 1- Amendments
Item 1 – In the appropriate position under the category heading “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED”
Item 1 amends the list under the category heading “ECOLOGICAL COMMUNITIES THAT ARE ENDANGERED” to include in the appropriate position the following ecological communities:
- Alpine Ash forests of mainland Australia
Schedule 2- Description of ecological community
Schedule 2 provides for a summary description of the ecological community. The description of the ecological community in Schedule 2 is not an amendment to the text of the List. A detailed description of the ecological community is available in the approved conservation advice on the department’s Species Profile and Threats Database - EPBC Act List of Threatened Ecological Communities at https://www.environment.gov.au/cgi-bin/sprat/public/publiclookupcommunities.pl
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC185)) Instrument 2026
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of this Legislative Instrument is to amend the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes (the List) to include the ecological community Alpine Ash forests of mainland Australia in the Endangered category.
Paragraph 184(a) of the Environment Protection and Biodiversity Conservation Act 1999 (Act), relevantly provides that the Minister may, by legislative instrument, amend the List by including items in the List in accordance with Part 13, Division 1, Subdivision AA of the Act.
The Alpine Ash forests of mainland Australia ecological community has been included in the endangered category of the List because it met the criteria whereby: several threatening processes have severely impacted the integrity of the ecological community and important community processes and its ability to recover, and there has been a severe continuing decline and intensification in degradation across most of the geographic distribution.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Senator the Hon Murray Watt
Minister for the Environment and Water