EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 184(1)(a)
(Issued under the Authority of the
Minister for Sustainability, Environment, Water, Population and Communities)
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 critically endangered category:
- Western Sydney Dry Rainforest and Moist Woodland on Shale
as recommended by the Threatened Species Scientific Committee (the Committee), having regard to the definition of critically endangered ecological communities under subsection 182(1) of the Act.
The Committee concluded that the Western Sydney Dry Rainforest and Moist Woodland on Shale ecological community met the criteria specified in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as vulnerable because the decline in geographic distribution of the ecological community since European settlement has been substantial;
- Criterion 2 as critically endangered because it has a very restricted distribution and the nature of its distribution makes it likely that the action of a threatening process could cause it to be lost in the immediate future; and
- Criterion 4 as critically endangered because the reduction in integrity across most of its range is very severe as indicated by very severe degradation of the community.
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 critically 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.
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. The nomination 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.
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. This Legislative Instrument does not engage any of the applicable rights or freedoms.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to provide a legal framework for the protection and conservation of Australia's biodiversity, including threatened ecological communities. This Act is administered by the Commonwealth Government and aims to address the problem of declining biodiversity by imposing obligations on the Commonwealth to safeguard threatened species and communities. The Act was designed to fill a legislative gap in providing a comprehensive and coordinated approach to the protection of the nation's environmental heritage. Pursuant to the authority vested in the Minister for Sustainability, Environment, Water, Population and Communities, this legislative instrument amends the list of threatened ecological communities under section 181 of the Act, adding the Western Sydney Dry Rainforest and Moist Woodland on Shale to the critically endangered category. This amendment was made in response to the recommendation of the Threatened Species Scientific Committee, which assessed the ecological community against specified criteria, concluding that it met the criteria for inclusion due to its severely restricted distribution and very severe degradation. The policy objective of this amendment is to provide targeted protection for this critically endangered ecological community, ensuring its survival and aiding in the broader conservation efforts mandated by the Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) applies to the entire Commonwealth of Australia, encompassing federal entities, activities that have, will, or might have a significant impact on matters of national environmental significance, and actions that may affect listed threatened species and ecological communities. This Act extends to all territories and states within the Commonwealth, providing a comprehensive national framework for environmental protection and biodiversity conservation. The Act includes obligations on the Commonwealth to conserve and protect threatened ecological communities, as amended by subordinate legislation such as the Environment Protection and Biodiversity Conservation Regulations 2000. The inclusion of specific ecological communities in the list of threatened species and communities is determined through legislative instruments issued under the authority of the relevant Minister, based on scientific recommendations and rigorous assessment criteria. Exclusions or exemptions from the Act’s application are determined by the specific provisions of the Act and its subordinate legislation, and are not generally applicable unless explicitly stated. This legislative instrument specifically amends the list of threatened ecological communities by adding the Western Sydney Dry Rainforest and Moist Woodland on Shale to the critically endangered category, following a thorough consultation process and scientific evaluation.
Key Provisions
The key operative sections of the legislative instrument are sections 181, 184(1)(a), and 182(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 181 allows for the listing of threatened ecological communities, while section 184(1)(a) provides the mechanism for amending the list by ministerial instrument. Section 182(1) defines what constitutes a critically endangered ecological community. The instrument amends the list of threatened ecological communities to include Western Sydney Dry Rainforest and Moist Woodland on Shale in the critically endangered category, as recommended by the Threatened Species Scientific Committee.
The Act imposes several obligations on the Commonwealth to protect and conserve threatened ecological communities. These include the duty to list such communities, as provided for in section 181, and to ensure that their conservation is promoted and their decline is halted or reversed. The Act also requires the Commonwealth to consider the advice of the Threatened Species Scientific Committee when deciding on the listing of ecological communities. Furthermore, once an ecological community is listed, the Act mandates that its conservation is prioritised and that actions that could threaten its survival are avoided or mitigated.
Breaches of the Act or its regulations can result in both civil and criminal penalties. For example, knowingly or recklessly causing harm to a listed threatened ecological community can result in fines and imprisonment. Under section 504 of the Act, a person can be fined up to $222,200 or imprisoned for up to one year, or both, for a strict liability offence related to the destruction of a threatened species or community. Additionally, corporations can be fined up to $1,111,000 for similar offences. Civil penalties, including injunctions and compensation orders, can also be sought by the Commonwealth to enforce compliance with the Act.
This legislative instrument ensures that the Western Sydney Dry Rainforest and Moist Woodland on Shale ecological community is recognised and protected under the Act, aligning with the criteria set out by the Threatened Species Scientific Committee. By including this ecological community in the critically endangered category, the instrument aims to provide a legal framework for its conservation, thereby preventing further decline and promoting its recovery.