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:
- Wetlands and inner floodplains of the Macquarie Marshes
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 Wetlands and inner floodplains of the Macquarie Marshes 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 vulnerable because its geographic distribution is limited and the nature of its distributin makes it likely that the action of a threatening process could cause it to be lost in the medium-term future;
- 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 wetland grasses, there has been a very severe decline to the extent 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 or 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. A 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, enacted by the Parliament of Australia, is designed to safeguard and conserve the nation's biodiversity, including threatened ecological communities. This legislative framework was introduced to address the need for a comprehensive approach to the protection of ecological communities that are at risk of extinction or significant decline due to various threats. Under this Act, the Minister for Environment, Heritage and Water has the authority to amend the list of threatened ecological communities, ensuring that the legislation remains responsive to scientific assessments and conservation needs. The policy objective underpinning this Act is to conserve Australia's biodiversity by providing for the protection of threatened species, ecological communities, and their habitats.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) applies to various entities and individuals within the Commonwealth of Australia, establishing obligations for the protection and conservation of threatened ecological communities. This legislative framework is designed to address ecological communities that are at risk of decline or extinction and mandates actions to safeguard these communities. The Act's application extends to any person or entity involved in actions that may impact these ecological communities, including businesses, government agencies, and individuals. The Act also has a jurisdictional reach across the entire Commonwealth, ensuring a national standard for the protection of threatened ecological communities. The Act can extend its application through subordinate instruments, such as regulations and guidelines, which provide further detail and operational instructions on how the Act should be implemented and enforced. The Act includes certain exclusions and exemptions, particularly where other legislation adequately addresses specific ecological concerns or where exemptions are justified on grounds such as cultural or economic considerations. This particular instrument amends the list of threatened ecological communities under the Act by adding the Wetlands and inner floodplains of the Macquarie Marshes in the critically endangered category, following recommendations by the Threatened Species Scientific Committee.
Key Provisions
The main operative sections of this legislative instrument are sections 181, 184(1)(a), and 182(2) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 181 of the Act allows for the listing of threatened ecological communities, while section 184(1)(a) empowers the Minister to amend the list of threatened ecological communities under the Act. Section 182(2) defines the criteria for categorising ecological communities as critically endangered, vulnerable, or endangered. This instrument, issued under section 184(1)(a) of the Act, seeks to amend the list of threatened ecological communities by including the Wetlands and inner floodplains of the Macquarie Marshes in the critically endangered category.
The Act imposes specific obligations on the Commonwealth to protect and conserve threatened ecological communities. The obligations include ensuring that actions that may have a significant impact on a listed threatened ecological community are assessed under the Act, and that measures are in place to mitigate any adverse effects on the community. In the case of the Wetlands and inner floodplains of the Macquarie Marshes, the listing in the critically endangered category means that any action that may impact on this ecological community must be assessed to determine its potential effects and appropriate measures must be implemented to avoid or mitigate any adverse impacts.
The Act also provides for offences and penalties for breaches of its provisions. Section 477 of the Act sets out the criminal penalties for contravening certain sections of the Act, including provisions relating to the protection of threatened ecological communities. For example, section 477(1)(a) of the Act provides that a person who contravenes section 475, which relates to the destruction of a threatened ecological community, is guilty of an offence and may be subject to a penalty of up to five years imprisonment or a fine of up to $360,000, or both. Similarly, section 477(1)(c) of the Act provides that a person who contravenes section 476, which relates to the impact on a threatened ecological community, is guilty of an offence and may be subject to a penalty of up to five years imprisonment or a fine of up to $360,000, or both. The maximum penalties for these offences are set out in section 478 of the Act.
In addition to criminal penalties, the Act also provides for civil penalties for breaches of its provisions. Section 486 of the Act sets out the civil penalty provisions for contravening certain sections of the Act, including provisions relating to the protection of threatened ecological communities. For example, section 486(1)(a) of the Act provides that a person who contravenes section 475 or section 476 of the Act is liable to a civil penalty of up to $66,600 for each day of the contravention. The maximum penalty for a civil penalty offence under the Act is set out in section 488 of the Act.