EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation (Species - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (319)) Determination 2023
Background
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species.
Subsection 517(1) of the Act provides that the Minister may, by legislative instrument, determine that a distinct population of biological entities is a species for the purposes of this Act.
Purpose of Instrument
The purpose of this Instrument is to determine that the following population of biological entities is a species for the purposes of the Act:
- Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population)
Consultation
Advice from the Threatened Species Scientific Committee was sought and considered prior to the making of the Instrument. The Committee recommended that Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) be determined as a species for the purposes of the Act as set out above.
Paragraph 17(1)(a) of the Legislation Act 2003 states that before the legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate. As this Instrument only determines a population of biological entities as a species for the purposes of the Act, public consultation was not undertaken on this Instrument, however consultation was conducted on the assessment of Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) for listing as a threatened species.
Notice of the proposed amendment to the list of threatened species and a consultation document was made available for public comment, with the above taxonomic description of the species. Any public comments received that were relevant to the eligibility or survival of the species were considered by the Scientific Committee as part of providing their advice to the Minister.
Commencement
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.
This Instrument is exempt from sunsetting, pursuant to paragraph 54(2)(b) of the Legislation Act 2003 and section 12 of the Legislation (Exemption and Other Matters) Regulation 2015. This Instrument is exempt from sunsetting because determinations made under section 517 of the Act are designed to be enduring and not subject to regular review, especially as the need to consider such biological entities as species may endure regardless of any statutory deadlines. Should these instruments be subject to the sunsetting regime, this would undermine the accuracy of lists made under sections 178, 209 or 248 of the Act upon the sunsetting of these determination instruments. An exemption for instruments made under section 517 of the Act remains consistent with existing exemptions provided for the lists of threatened species, migratory species and marine species under the Act.
Authority: subsection 517(1) of the Environment Protection and Biodiversity Conservation Act 1999.
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
(Species - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367)
(Northern Territory population) (319)) Determination 2023 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 Instrument is to determine that the following population of biological entities is a species for the purposes of the Act: - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population)
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. The Hon Tanya Plibersek MP Minister for the Environment and Water |
Overview
The Environment Protection and Biodiversity Conservation (Species - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (319)) Determination 2023 was enacted to address the gap in recognising distinct populations of biological entities as species for the purposes of the Environment Protection and Biodiversity Conservation Act 1999. This legislative instrument, introduced by the Australian Parliament, aims to ensure the protection and conservation of biodiversity by formally identifying specific populations as distinct species. The determination follows the advice of the Threatened Species Scientific Committee and was made in accordance with subsection 517(1) of the Act, which allows the Minister to designate populations as species through a legislative instrument. This determination is exempt from sunsetting provisions, reflecting the enduring nature of such biological determinations and their importance for the ongoing protection of biodiversity.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) applies to various entities and individuals whose actions may impact the environment and biodiversity within Australia. The Act is a Commonwealth statute and thus applies across the entire nation, with the Minister for the Environment having the authority to determine distinct populations of biological entities as species under subsection 517(1). The specific instrument, Environment Protection and Biodiversity Conservation (Species - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (319)) Determination 2023, focuses on identifying a particular population of Erythroxylum sp. Cholmondely Creek as a species for the purposes of the Act. The determination follows advice from the Threatened Species Scientific Committee and aims to ensure appropriate protection and conservation measures are in place for this distinct population within the Northern Territory. The Act's application extends to any activities that may affect the identified species, and the exemption from sunsetting ensures the determination's enduring nature aligns with the Act's purpose of maintaining biodiversity and environmental integrity.
Key Provisions
The Environment Protection and Biodiversity Conservation (Species - Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (319)) Determination 2023 (the Determination) is a legislative instrument that provides for the recognition of a distinct population of Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) in the Northern Territory as a species under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). This is achieved by determining that this distinct population of biological entities is a species for the purposes of the Act (s 1). The Minister for the Environment and Water has the authority to make such a determination under subsection 517(1) of the Act (s 2). The Determination came into effect on the day after its registration and is exempt from the sunsetting provisions of the Legislation Act 2003 (s 3).
The Determination imposes obligations on relevant parties to recognise the specified population of Erythroxylum sp. Cholmondely Creek as a distinct species for the purposes of the Act. This recognition mandates that the species is afforded protection under the Act, including measures for its conservation and protection (s 1). The Minister must ensure that activities impacting this species comply with the requirements set forth in the Act, such as obtaining approvals for actions that may harm the species (s 517(1)).
There are no explicit offences, penalties, or civil/criminal consequences outlined in the Determination itself. However, the Act provides a framework for enforcing compliance with its provisions. Offences under the Act can include actions that result in the destruction or harm to a listed species, which can lead to penalties such as fines and imprisonment (s 509). Additionally, civil remedies may be available for those affected by non-compliance with the Act’s provisions, including compensation for loss or damage caused by unauthorised actions (s 528).