EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 184(1)(a)
(Issued under the Authority of the Minister for Environment, Heritage and Water)
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:
- River Murray and associated wetlands, floodplains and groundwater systems, from the junction with the Darling River to the sea
as recommended by the Threatened Species Scientific Committee (the Committee), having regard to the definition of critically endangered ecological communities under subsection 182(2) of the Act.
The Committee concluded that the River Murray and associated wetlands, floodplains and groundwater systems, from the junction with the Darling River to the sea ecological community met the criteria specified in Division 7.1 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 3 as critically endangered because for certain native species that have a major functional role in the ecological community, notably river red gum, wetland shrubs and aquatic fauna, there has been a very severe decline, such that restoration of the ecological community is not likely to occur within the immediate future;
- Criterion 4 as critically endangered because the reduction in integrity across most of its range is very severe as indicated by degradation of the community and disruption of important community processes that is very severe; and
- Criterion 5 as endangered because its rate of continuing detrimental change is severe as indicated by a rate of continuing decline in its geographic distribution 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 draft Conservation Advice 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 a comprehensive framework that ensures the protection and conservation of Australia's unique biodiversity and threatened species. This Act, established by the Commonwealth Parliament, aims to mitigate the impact of activities that may harm the environment, particularly focusing on the conservation of ecological communities. One such legislative instrument under the Act, issued by the Minister for Environment, Heritage and Water, was created to amend the list of threatened ecological communities, specifically adding the River Murray and associated wetlands, floodplains and groundwater systems from the junction with the Darling River to the sea to the critically endangered category. This amendment was based on the recommendation of the Threatened Species Scientific Committee, which found the ecological community met the criteria for critically endangered status due to severe declines in native species and community integrity. The process of amending the list involved public consultation and consideration of relevant expert advice to ensure the decision aligns with the policy objectives of preserving and protecting Australia's threatened ecological communities.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to any person or entity conducting activities that may impact upon matters of national environmental significance. These include ecological communities that are protected under the Act, which the Act aims to conserve through various mechanisms such as listing them as threatened. The Act extends across the entire Commonwealth of Australia, encompassing federal territories and waters, and applies to all individuals, corporations, and unincorporated associations whose actions or operations may affect the environment. The Act's jurisdiction includes the regulation of activities that may impact listed threatened species and ecological communities, irrespective of where these activities occur within Australia. However, the Act may also apply extraterritorially to actions taken outside Australia if they have a significant impact on matters of national environmental significance within Australia. In this specific case, the Act is used to amend the list of threatened ecological communities to include the River Murray and associated wetlands, floodplains and groundwater systems, from the junction with the Darling River to the sea, placing it in the critically endangered category. The Act does not specify exclusions or exemptions for listing threatened ecological communities, although certain activities may be exempt or subject to conditions under subordinate instruments or other legislative provisions. The application and enforcement of the Act may be further detailed or modified through regulations or other legislative instruments issued under the authority of the Act.
Key Provisions
The primary operative sections of the instrument are concerned with the amendment of the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 184(1)(a) of the Act allows for the amendment of the list of threatened ecological communities, and this instrument implements that power by including the River Murray and associated wetlands, floodplains and groundwater systems, from the junction with the Darling River to the sea in the critically endangered category (sections 1 to 3). This addition is made based on the recommendation of the Threatened Species Scientific Committee (the Committee), which has determined that the ecological community meets the criteria for inclusion in the critically endangered category under the Act.
The Act imposes specific obligations on the Commonwealth to protect and conserve threatened ecological communities. With this amendment, the River Murray and associated wetlands, floodplains and groundwater systems, from the junction with the Darling River to the sea now fall under the critical conservation category. This means that additional measures must be taken to ensure the survival of this ecological community, including the implementation of conservation strategies and actions as outlined in the Act and its regulations. The Act requires the Minister to develop and implement a recovery plan for threatened ecological communities listed in the critically endangered category, ensuring that these plans address the specific threats and necessary conservation actions for the ecological community in question.
There are no specific offences or penalties outlined in this instrument for breaching the obligations imposed by the Act. However, breaches of the Act or its regulations could lead to civil or criminal consequences, including fines and imprisonment. For instance, under section 486 of the Act, a person who contravenes a provision of the Act or its regulations may be liable to a penalty of up to $66,600 for a corporation and $13,320 for an individual. Additionally, under section 508 of the Act, a person who engages in conduct that is likely to have a significant impact on a threatened ecological community may be subject to civil penalty orders or other enforcement actions. The severity of the penalties depends on the nature and extent of the breach, with maximum penalties available for serious or repeated offences.