EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 184(1)(a)
(Issued under the Authority of the Minister for the Environment)
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) places certain obligations on the Commonwealth to protect and conserve threatened ecological communities.
The purpose of this instrument is to amend the list of threatened ecological communities under section 181 of the Act in accordance with paragraph 184(1)(a) of the Act by including in the list in the endangered category:
- Coastal Upland Swamps in the Sydney Basin Bioregion
as recommended by the Threatened Species Scientific Committee (the Committee), having regard to the definition of endangered ecological communities under subsection 182(2) of the Act.
The Committee concluded that the Coastal Upland Swamps in the Sydney Basin Bioregion ecological community met the criteria specified in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 2 as endangered because its geographic distribution is restricted and the nature of its distribution makes it likely that the action of a threatening process could cause it to be lost in the near future;
- Criterion 4 as vulnerable because the reduction in integrity across most of its range is substantial as indicated by degradation of the community or disruption of important community processes;
- Criterion 5 as endangered because the projected rate of decline is indicative of a severe rate of continuing detrimental change.
On the basis of the assessment and advice of the Committee, I am satisfied that this ecological community is eligible to be included in the endangered category. In deciding to include it in the list, I 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.
The Committee recommended the ecological community for inclusion on the Finalised Priority Assessment List for the assessment period commencing 1 October 2013. Consultation on the nomination to amend the list of threatened ecological communities under the Act to include this ecological community was undertaken before the legislative instrument was made in accordance with the process outlined in Part 13, Division 1, Subdivision AA of the Act. A draft description was placed on public exhibition, 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 forwarded to the Committee and to me for consideration.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation Act 1999, enacted by the Parliament of Australia, was introduced to address the need for comprehensive protection of the nation’s biodiversity and threatened species. This Act established mechanisms for the Commonwealth to safeguard and conserve various ecological communities, including those that are endangered or vulnerable. In the context of this specific legislative instrument, the problem it addresses is the inclusion of a specific ecological community, Coastal Upland Swamps in the Sydney Basin Bioregion, into the endangered category of the list of threatened ecological communities under the Act. This was recommended by the Threatened Species Scientific Committee, following their assessment that the ecological community met the criteria for endangerment due to restricted geographic distribution and severe projected decline, which aligns with the policy objective of protecting threatened ecological communities and ensuring their survival.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to the Commonwealth, ensuring the protection and conservation of threatened species and communities, including ecological communities. This Act extends its obligations to cover any action or proposal that may have a significant impact on a matter of national environmental significance, such as threatened species and ecological communities. The legislation applies to individuals, corporations, and any entity involved in actions that may affect these protected entities. The geographic scope of the Act is national, as it aims to conserve ecological communities across Australia. The Act includes mechanisms to amend the list of threatened ecological communities through subordinate legislation, such as the instrument described in the explanatory statement, which adds Coastal Upland Swamps in the Sydney Basin Bioregion to the endangered category based on the recommendations of the Threatened Species Scientific Committee. The Act does not specify particular exclusions or exemptions, but its application is subject to the criteria outlined in the Environment Protection and Biodiversity Conservation Regulations 2000, which govern the listing of threatened species and communities.
Key Provisions
The main operative sections of this legislation involve the amendment of the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (the Act) through section 181. This section allows for the inclusion of specific ecological communities in the endangered category based on the recommendations of the Threatened Species Scientific Committee (the Committee), as stipulated in section 184(1)(a) of the Act (section 181). The instrument specifically mandates the addition of Coastal Upland Swamps in the Sydney Basin Bioregion to the list of endangered ecological communities (section 1). This decision is based on the criteria outlined in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, where the ecological community meets the criteria under Criterion 2, Criterion 4, and Criterion 5 (section 2).
The Act imposes several obligations on the parties or entities it governs. Primarily, it mandates the Commonwealth to protect and conserve threatened ecological communities, including those listed under the endangered category (section 181). The Act also requires the Threatened Species Scientific Committee to assess and recommend ecological communities for inclusion on the list based on specific criteria (section 184). Additionally, the Act mandates consultation processes where public comments are sought and relevant experts are consulted before amendments to the list are made (section 3). These obligations ensure that the ecological communities are assessed and listed based on rigorous scientific criteria and public consultation.
Breaches of the Act can result in various civil and criminal consequences. While the Act does not explicitly state offences and penalties in this particular instrument, it is governed by the broader provisions of the Act, which can impose penalties for non-compliance with conservation and protection obligations. Under the Act, offences can lead to substantial fines and, in some cases, imprisonment. For instance, under section 507 of the Act, a person who commits an offence against the Act can be liable to a fine of up to $66,600 for a corporation or $13,320 for an individual, or both, depending on the severity of the offence. Furthermore, in cases of severe environmental harm, penalties can be significantly higher, reflecting the gravity of the ecological impact.