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:
- Proteaceae Dominated Kwongkan Shrublands of the Southeast Coastal Floristic Province of Western Australia
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 Proteaceae Dominated Kwongkan Shrublands of the Southeast Coastal Floristic Province of Western Australia 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 its decline in geographic distribution is substantial;
- Criterion 2 as endangered because its geographic distribution is very 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 endangered because the reduction in integrity across most of its range is severe as indicated by degradation of the community or disruption of important community processes that is severe; and
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 2011. 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 was enacted to provide a framework for the protection and conservation of the environment and biodiversity, particularly focusing on threatened species and ecological communities. This Act was introduced to address the gap in the protection of Australia’s unique and threatened natural environments from significant impacts. Enacted by the Australian Parliament, the Act aims to ensure that the Commonwealth, in collaboration with other jurisdictions, effectively conserves and manages Australia’s biodiversity. The policy objective is to safeguard ecological communities that are at risk of decline or extinction, thereby contributing to the sustainable management of natural resources. This legislative instrument amends the list of threatened ecological communities under the Act, specifically including the Proteaceae Dominated Kwongkan Shrublands of the Southeast Coastal Floristic Province of Western Australia in the endangered category, following recommendations by the Threatened Species Scientific Committee.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to any person or entity that engages in activities which have, or are likely to have, a significant impact on matters of national environmental significance. This includes individuals, corporations, and government entities, and encompasses a wide range of industries and activities, including mining, agriculture, and urban development. The Act's jurisdictional reach is national, as it is a Commonwealth Act, and applies to actions that occur within Australia’s territorial limits. There are, however, certain exclusions and exemptions as outlined in the Act and its subordinate instruments. For instance, the Act may not apply to certain activities if they are explicitly exempted or if they fall below certain thresholds of impact. The Act’s application can be extended or restricted through subordinate instruments, such as regulations or determinations, which provide further detail on specific activities or circumstances. These subordinate instruments help to clarify the scope and implementation of the Act, ensuring that it effectively addresses environmental protection and biodiversity conservation across the nation.
Key Provisions
The main operative sections of this legislative instrument are found in section 181 of the Environment Protection and Biodiversity Conservation Act 1999, which pertains to the listing of threatened ecological communities, and section 184(1)(a), which outlines the process for amending such lists. In accordance with these sections, the instrument amends the list of threatened ecological communities to include Proteaceae Dominated Kwongkan Shrublands of the Southeast Coastal Floristic Province of Western Australia in the endangered category. This addition follows the recommendation of the Threatened Species Scientific Committee, which found that the ecological community met the criteria for endangered status under Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000. Specifically, the ecological community was found to have a substantial decline in geographic distribution (Criterion 1), a very restricted geographic distribution making it likely to be lost in the near future (Criterion 2), and a severe reduction in integrity across most of its range due to degradation or disruption of community processes (Criterion 4).
The Act imposes certain obligations on the Commonwealth to protect and conserve these threatened ecological communities. Under section 181, the Act requires the Minister for the Environment to maintain a list of threatened ecological communities, which must be periodically reviewed and updated. This instrument acts to update that list by including the Proteaceae Dominated Kwongkan Shrublands of the Southeast Coastal Floristic Province of Western Australia in the endangered category, in line with the advice of the Threatened Species Scientific Committee. This inclusion signifies a commitment by the Commonwealth to take necessary measures to protect and conserve this ecological community. Additionally, the Act requires the Minister to consider public submissions and expert opinions in making decisions regarding the listing of threatened ecological communities, as evidenced by the consultation process outlined in the explanatory statement.
Breaches of the obligations imposed by the Act may result in various consequences, including potential civil and criminal penalties. While the specific provisions regarding penalties are not detailed in the explanatory statement, the Act generally provides for enforcement mechanisms to ensure compliance. For instance, actions that are deemed to threaten listed ecological communities can attract penalties under section 487, which can include substantial fines and, in some cases, imprisonment. Additionally, the Act allows for the recovery of costs incurred in enforcing the Act, further incentivising compliance. The precise penalties and enforcement mechanisms would depend on the nature and severity of the breach, as well as any applicable regulations and guidelines.