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 endangered category:
- Giant Kelp Marine Forests of South East 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 Giant Kelp Marine Forests of South East 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 the decline in geographic distribution of the ecological community since European settlement has been substantial;
- Criterion 2 as vulnerable 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 medium-term future; and
- Criterion 3 as endangered because the decline in functionally important species is severe and that restoration of the ecological community is not likely to be possible in the near future
- Criterion 4 as endangered because the reduction in integrity across most its range is severe as indicated by severe degradation of the community and regeneration is unlikely within the near future, even with positive human intervention.
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.
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 (the Act) was introduced to address the need for comprehensive protection and conservation of the nation's biodiversity. The Act places specific obligations on the Commonwealth to safeguard threatened species and ecological communities, ensuring that their conservation is integrated into decision-making processes. This legislative instrument, issued under the authority of the Minister for Sustainability, Environment, Water, Population and Communities, amends the list of threatened ecological communities by including Giant Kelp Marine Forests of South East Australia in the endangered category, as recommended by the Threatened Species Scientific Committee. This inclusion is based on criteria including substantial decline in geographic distribution, restricted distribution, severe decline in functionally important species, and severe degradation of integrity, all of which align with the definitions and criteria specified in the Act and its regulations. The decision to include this ecological community in the endangered category was made following thorough consultation and consideration of public submissions and expert advice.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to all individuals, entities, and industries within the Commonwealth of Australia, imposing obligations to protect and conserve threatened species and ecological communities. This Act covers a wide array of activities and transactions that may impact these species and communities, including actions that could lead to their decline or extinction. The Act's jurisdictional reach is national, ensuring comprehensive protection across all states and territories. However, certain exclusions and exemptions may apply, depending on specific circumstances or activities as defined in the Act and its subordinate instruments. The Act's application can be extended or restricted through regulations and other legislative instruments, allowing for detailed and targeted measures to be implemented. In this particular instance, the Act has been utilised to amend the list of threatened ecological communities by including the Giant Kelp Marine Forests of South East Australia in the endangered category, following recommendations by the Threatened Species Scientific Committee.
Key Provisions
The main operative sections of this legislative instrument pertain to the amendment of the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 181 of the Act empowers the Minister to amend the list of threatened ecological communities, while section 184(1)(a) allows for the Minister to make an instrument to do so. The specific amendment in question is the inclusion of Giant Kelp Marine Forests of South East Australia in the endangered category (section 181). This action follows the recommendation of the Threatened Species Scientific Committee (the Committee) and is based on criteria outlined in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000.
The Act imposes several obligations on parties and entities governed by it. Firstly, it places a duty on the Commonwealth to protect and conserve threatened ecological communities (section 3). Secondly, the Act requires the Minister to consider the advice of the Committee when deciding whether to include a community in the list of threatened ecological communities (section 184). Additionally, the Act mandates that consultation processes be followed, including public exhibition and the seeking of expert opinions, before any amendments are made (Part 13, Division 1, Subdivision AA). These obligations ensure that the inclusion of new ecological communities in the list is both scientifically informed and publicly transparent.
Breaching the provisions of the Act can result in various civil and criminal consequences. For instance, actions that adversely affect a listed threatened ecological community without the required approval can lead to civil penalties. The maximum penalty for contravening the Act can be substantial, reaching up to $666,000 for a corporation and $133,000 for an individual, as outlined in section 509 of the Act. Additionally, criminal offences may arise from wilful or reckless conduct that causes harm to a listed ecological community, potentially leading to imprisonment. These penalties underscore the importance of adhering to the Act's provisions to ensure the protection and conservation of endangered ecological communities.