Environment Protection and Biodiversity Conservation List of Threatened Species Amendment (429) Instrument 2025

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

Legislation au F2025L00945 Not in force Legislative Instrument

Legislation content

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 List of Threatened Species Amendment (429) Instrument 2025

 

Legislative Authority

 

The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species.

 

Subsection 178(1) of the Act provides that the Minister must, by legislative instrument, establish a list of threatened species separated into the following categories: Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable and Conservation Dependent. This list referred to in subsection 178(1) of the 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 (List).

 

Paragraph 184(c) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by transferring items from one category in the list to another category in the list in accordance with Subdivision AA.

 

Subsection 186(1) of the Act provides that the Minister must not include (whether as a result of a transfer or otherwise) a native species on the List in a particular category unless satisfied that the native species is eligible to be included in that category.

 

Subsection 186(2B) of the Act provides that in deciding whether to delete a native species from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to whether the native species is eligible to be included in that category or the effect that the inclusion of the native species in that category is having, or could have, on the survival of the species.

 

Subsection 179(3) of the Act provides that a native species 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.

 

Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000 provides that for section 179 of the Act, a native species is in the Critically Endangered, Endangered or Vulnerable category if it meets any of the five criteria for the category mentioned in the table to that provision.

 

The Minister was satisfied that the requisite criteria was met for transferring Pristis pristis from the Vulnerable to the Endangered category within the List.

 

 

Purpose of Instrument

 

The purpose of this Instrument is to amend the List by transferring the species Pristis pristis from the Vulnerable category in the List and including it in the Endangered category in the List.

 

Pristis pristis is considered threatened due to mortality in commercial fisheries and habitat loss and degradation caused by climate change and water resource development.

Consultation

 

The process for making amendments to the List to include or transfer 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.

 

Notice of the proposed amendment and a consultation document was made available for public comment for a minimum of 30 business days as required by subsection 194M(3) of the Act. Any public comments received that were relevant to the survival of the species were considered by the Threatened Species Scientific Committee (Committee) as part of the assessment process.

 

The Committee prepared a written assessment of whether the nominated species was eligible for inclusion in the List. The Committee assessed Pristis pristis as eligible for transfer from the Vulnerable to the Endangered category within the List.

 

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 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).

 

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 section 178, 181 or 183 of the 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.

 

The Instrument commences the day after registration.

 

Authority: section 184 of the Environment Protection and Biodiversity Conservation Act 1999.

ATTACHMENT A

 

Details of the Environment Protection and Biodiversity Conservation List of Threatened Species Amendment (429) Instrument 2025

 

 

Section 1 – Name

 

This section provides that the title of the instrument is the Environment Protection and Biodiversity Conservation List of Threatened Species Amendment (429) Instrument 2025 (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 – SPECIES THAT ARE ENDANGERED

 

Item 1 amends the list under the heading “SPECIES THAT ARE ENDANGERED” to include in the appropriate position the following species:

 

  1.                     Pristis pristis

 

Item 2 – SPECIES THAT ARE VULNERABLE

 

Item 2 amends the list under the heading “SPECIES THAT ARE VULNERABLE” to omit in the appropriate position the following species:

 

  1.                     Pristis pristis

 

 

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 List of Threatened Species Amendment (429) Instrument 2025

 

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 to transfer Pristis pristis from the Vulnerable to the Endangered category.

 

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 List of Threatened Species Amendment (429) Instrument 2025 was enacted to address the need for updating the conservation status of certain threatened species under the Environment Protection and Biodiversity Conservation Act 1999. This Instrument was introduced to amend the List of Threatened Species by transferring the species Pristis pristis from the Vulnerable category to the Endangered category, reflecting its increased vulnerability due to factors such as mortality in commercial fisheries and habitat loss. The legislative authority for this amendment stems from section 184 of the Act, which allows the Minister for the Environment and Water to make amendments to the List by legislative instrument. The policy objective behind this amendment is to ensure the conservation of biodiversity and the protection of threatened species by providing them with the necessary regulatory safeguards. The Instrument was developed following a consultation process that included public comment and consideration of assessments by the Threatened Species Scientific Committee. The Instrument also ensures that it is compatible with human rights, as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011, and it does not engage any applicable rights or freedoms. The amendments made by this Instrument are enduring, as the List is exempt from the sunsetting requirements under the Legislation Act 2003, ensuring ongoing protection for listed species. The Instrument commences the day after its registration.

Scope and Application

The Environment Protection and Biodiversity Conservation List of Threatened Species Amendment (429) Instrument 2025 pertains to the Environment Protection and Biodiversity Conservation Act 1999, which governs the protection of the environment and biodiversity conservation, including the protection and conservation of threatened species. This Instrument specifically amends the List of Threatened Species by transferring Pristis pristis from the Vulnerable category to the Endangered category, reflecting its increased risk of extinction due to factors such as mortality in commercial fisheries and habitat loss from climate change and water resource development. The Instrument applies nationally across Australia, impacting entities and individuals involved in activities affecting Pristis pristis or its habitat. The amendment process involved public consultation and assessment by the Threatened Species Scientific Committee, ensuring that the listing is based on rigorous eligibility criteria. The Instrument is exempt from sunsetting, meaning the amendments will be enduring, and it is subject to disallowance under the Legislation Act 2003. The Instrument comes into effect the day after registration and is compatible with human rights as it does not engage any of the applicable rights or freedoms under the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Environment Protection and Biodiversity Conservation List of Threatened Species Amendment (429) Instrument 2025 amends the List of Threatened Species by transferring the species Pristis pristis from the Vulnerable category to the Endangered category. This transfer is pursuant to section 184 of the Environment Protection and Biodiversity Conservation Act 1999 (the Act), which allows the Minister to amend the List through legislative instruments. The Minister made this decision after considering the assessment of the Threatened Species Scientific Committee, which deemed Pristis pristis eligible for the transfer based on its very high risk of extinction due to factors such as mortality in commercial fisheries and habitat loss. The Instrument operates by amending the Declaration under sections 178, 181, and 183 of the Act, specifically updating the List of threatened species to reflect the new status of Pristis pristis. The Instrument is designed to ensure that Pristis pristis receives the heightened protection and conservation efforts warranted by its endangered status. The obligations imposed by the Act on the parties and entities it governs include the requirement for the Minister to ensure that any species included in the List meets the eligibility criteria for its category. This involves thorough assessments and consultation with relevant scientific committees, as well as public consultation. The Minister must also ensure that any amendments to the List, such as the transfer of Pristis pristis, are made in accordance with the statutory review processes outlined in the Act. These processes are intended to maintain the accuracy and currency of the List, ensuring that species receive appropriate protection. Additionally, the Act mandates that any decisions to include or transfer a species must be based on the best available scientific information and must consider the potential impact on the survival of the species. Breaches of the Act can result in civil and criminal penalties. For instance, under section 508 of the Act, individuals or entities that engage in activities that are likely to have a significant impact on a listed threatened species without the required approval can face civil penalties of up to $666,000 for individuals and $3.3 million for corporations, as well as criminal penalties including fines and imprisonment. The specific penalties depend on the nature and extent of the breach, with more severe penalties applying for actions that cause serious harm to listed species or their habitats. The Act also provides for enforcement actions by authorised officers and the courts, ensuring that compliance with the legislation is monitored and enforced effectively.

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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.