Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC190)) Instrument 2026

Administered by Department of Climate Change, Energy, the Environment and Water

Legislation au F2026L00286 In force Legislative Instrument

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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 (EC190)) 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: White Ash forests of south-east 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 White Ash forests of south-east Australia met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2025, as follows:

  • Criterion 5 as endangered because of a severe rate of continuing detrimental change as indicated by a severe continuing decline of mature White ash trees that play a major role in the community, intensification in degradation across most of its geographic distribution and disruption of important community processes, particularly reduced regeneration of White ash trees.

On the basis of the assessment and advice of the Committee, the Minister was satisfied that this ecological community is eligible to be included in the endangered category. 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.

 

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 (EC190)) 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 (EC190)) 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:

 

  1.                     White Ash forests of south-east 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 (EC190)) 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 White Ash forests of south-east 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 White Ash forests of south-east Australia ecological community has been included in the endangered category of the List because it met the criteria whereby: there is a severe rate of continuing decline, especially of trees that play a major role in the community, intensification in degradation across most of the geographic distribution and disruption of important community processes.

 

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

 

Overview

The Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC190)) Instrument 2026 was enacted to address the gap in the protection of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999. This legislative instrument was introduced by the Minister for the Environment and Water, under the authority of the Environment Protection and Biodiversity Conservation Act 1999. Its policy objective is to safeguard the biodiversity of Australia by providing for the inclusion of critically endangered, endangered, and vulnerable ecological communities in a dedicated list. This amendment specifically targets the inclusion of White Ash forests of south-east Australia in the endangered category, following the assessment and recommendation by the Threatened Species Scientific Committee. The enactment of this instrument is part of a broader effort to ensure that ecological communities facing significant threats are recognised and protected under the Act. The instrument was developed after thorough consultation with relevant stakeholders and experts, in compliance with the statutory processes outlined in the Act. Public consultation was conducted as required, with a draft assessment placed on public exhibition for a minimum of 30 business days. All submissions received were considered by the Committee and forwarded to the Minister. The Minister, in turn, considered the Committee's assessment and any public comments before making the decision to amend the List. The legislative instrument is designed to be enduring, with the amendments exempt from the sunsetting requirements, ensuring continued protection for threatened species and ecological communities.

Scope and Application

The Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC190)) Instrument 2026 amends the Environment Protection and Biodiversity Conservation Act 1999 by adding the White Ash forests of south-east Australia to the list of threatened ecological communities in the Endangered category. This instrument applies to ecological communities, specifically focusing on White Ash forests, and involves the federal government, particularly the Minister for the Environment and Water, who has the authority to amend the list under the Act. The amendment is made in accordance with the stringent process outlined in Part 13, Division 1, Subdivision AA of the Act, involving assessment by the Threatened Species Scientific Committee and mandatory public consultation. The geographic scope of the Act is national, affecting all of Australia. There are no stated exclusions, exemptions, or thresholds specified in the instrument itself, although the eligibility criteria for inclusion in the endangered category are defined in the Environment Protection and Biodiversity Conservation Regulations 2025. The Instrument is subject to disallowance and sunsetting provisions under the Legislation Act 2003, although certain lists under the EPBC Act, including the List of Threatened Ecological Communities, are exempt from these provisions to ensure enduring protection for threatened species and communities.

Key Provisions

The Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC190)) Instrument 2026 amends the List of Threatened Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by adding White Ash forests of south-east Australia to the endangered category (Section 4). The White Ash forests of south-east Australia have been included in this category because they are facing a very high risk of extinction in the wild in the near future, as indicated by a severe continuing decline of mature White ash trees, intensification in degradation across most of its geographic distribution, and disruption of important community processes (Section 4, Schedule 1, Item 1). The Act imposes specific obligations on the Minister for the Environment and Water, including the responsibility to establish a list of threatened ecological communities divided into categories such as critically endangered, endangered, and vulnerable (Section 181(1)). Subsection 182(2) of the Act specifies that an ecological community is eligible for inclusion in the endangered category if it is facing a very high risk of extinction in the wild in the near future. The Minister must consider only the eligibility of the ecological community and the potential effects of listing on its survival when deciding to include it in a category (Section 187(2)). The Minister must also have regard to the Threatened Species Scientific Committee’s assessment of the ecological community (Section 194Q). Failure to comply with the Act’s provisions may result in civil or criminal penalties, depending on the nature and severity of the breach. For example, the Act provides for offences such as causing harm to listed threatened species or communities, which can lead to significant fines and imprisonment. The specific penalties for breaches are detailed in other sections of the EPBC Act and related regulations. This legislative instrument ensures that the White Ash forests of south-east Australia receive the necessary protection and conservation efforts to mitigate their decline and support their survival.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.