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:
- Lowland Rainforest of Subtropical Australia
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 Lowland Rainforest of Subtropical 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 endangered because its decline in geographic distribution is severe;
- Criterion 2 as critically 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 immediate future;
- Criterion 3 as endangered because for a population of a native species that is likely to play a major role in the community, there is a severe decline to the extent that restoration of the community is not likely to be possible in the near future; and
- Criterion 4 as endangered because the reduction in its integrity across most of its geographic distribution is severe as indicated by the degradation of the community or its habitat, or disruption of important community processes, that is severe.
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.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to address the need for comprehensive protection and conservation of Australia's biodiversity, including threatened ecological communities. This Act provides the legislative framework for the Commonwealth to manage and protect species and communities that are at risk of extinction. The Act empowers the Minister for Sustainability, Environment, Water, Population and Communities to amend the list of threatened ecological communities, as was done with the inclusion of the Lowland Rainforest of Subtropical Australia in the critically endangered category. This legislative amendment was made following recommendations from the Threatened Species Scientific Committee, which evaluated the ecological community against specific criteria and determined its eligibility for inclusion based on severe declines and restricted geographic distribution, making it highly vulnerable to extinction. The policy objective underpinning this legislative instrument is to enhance the protection of critically endangered ecological communities and ensure their survival through stringent conservation measures.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, as amended by the legislative instrument F2011L02417, imposes specific obligations on the Commonwealth government to safeguard and conserve threatened ecological communities. This Act applies to individuals, corporations, and other entities that may be involved in activities impacting these ecological communities. The geographic scope of the Act extends nationally, enforcing the protection of biodiversity across all states and territories of Australia. The instrument specifically amends the list of threatened ecological communities by including the Lowland Rainforest of Subtropical Australia in the critically endangered category, reflecting its severely restricted geographic distribution and high vulnerability to threatening processes. The Act provides for the implementation of protective measures through subordinate regulations, and this legislative instrument is a part of the process to ensure these protections are effectively applied and updated as necessary.
Key Provisions
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) includes specific provisions for the protection and conservation of threatened ecological communities. Under section 181 of the Act, the Commonwealth is required to maintain a list of these communities. This list is amended by legislative instruments such as F2011L02417, which adds the Lowland Rainforest of Subtropical Australia to the critically endangered category, as recommended by the Threatened Species Scientific Committee (the Committee). This decision is based on criteria outlined in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, including severe decline in geographic distribution, restricted geographic distribution, severe decline in population of a native species, and severe reduction in the integrity of the ecological community.
The Act imposes various obligations on the parties and entities it governs, particularly in relation to the protection of listed threatened ecological communities. Section 183 of the Act makes it an offence to take an action that is likely to have a significant impact on a listed threatened ecological community without first obtaining approval from the relevant minister. This includes actions such as clearing land, altering water regimes, or introducing threatening processes like pests or invasive species. The Act also requires that any approval process considers the potential impact on the ecological community and whether there are any viable alternatives that would cause less harm.
Breach of the provisions of the Act can result in both civil and criminal consequences. Under section 474 of the Act, an individual or entity that takes an action likely to have a significant impact on a listed threatened ecological community without the required approval can be subject to substantial penalties. For individuals, the maximum penalty is $66,000 or imprisonment for up to one year, or both. For bodies corporate, the maximum penalty is $330,000 or twice the value of the benefit obtained from the action, whichever is greater. Additionally, sections 508 and 509 of the Act allow for enforcement actions, including injunctions and fines, to be taken against those who violate the Act's provisions. The severity of the penalties reflects the importance of protecting these critically endangered ecological communities and the potential long-term damage that can result from non-compliance.