Instrument under section 209 of the Environment Protection and Biodiversity Conservation Act 1999 to update names on the list of migratory species

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2018L00233 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

(Issued under the Authority of the Minister for the Environment and Energy)

Environment Protection and Biodiversity Conservation Act 1999

Instrument under section 209 of the Environment Protection and Biodiversity Conservation Act 1999 to update names on the list of migratory species

 

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides for the protection of the environment, especially matters of national environmental significance, and conservation of biodiversity, including the protection and conservation of listed migratory species.

Under section 209 of the Act, the Minister must establish a list of migratory species (the List) for the purposes of the Act. The List is a compilation of native species listed in the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), migratory species listed in the Annexes to the Japan-Australian Migratory Bird Agreement (JAMBA), the China-Australia Migratory Bird Agreement (CAMBA), and native species listed under other international agreements approved by the Minister as agreements relevant to the conservation of migratory species (presently the Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA)).

Section 209(6) of the Act provides that the Minister or delegate may, by legislative instrument, amend the List as necessary to correct an inaccuracy or update the name of a listed migratory species.

The purpose of this Instrument is to amend the List by correcting and updating the scientific names of migratory species included in the List as set out below:

Diomedea epomophora to Diomedea epomophora, and Diomedea sandfordi

Diomedea exulans to Diomedea exulans, Diomedea antipodensis, and Diomedea dabbenena

Thalassarche cauta to Thalassarche cauta, Thalassarche eremita, Thalassarche salvini, and Thalassarche steadi

Thalassarche melanophris to Thalassarche melanophris, and Thalassarche impavida

Thalassarche chlororhynchos to Thalassarche chlororhynchos, and Thalassarche carteri.

Background

The scientific names of these species have been updated so that the List includes all species required to be included under section 209(3)(a)(ii) of the Act. These name changes result from taxonomic revisions to Appendix II to the Bonn Convention, where subspecies are now listed at the species level.

The 10th meeting of the Conference of Parties to the Bonn Convention adopted UNEP/CMS/Resolution 10.13 on Standardized nomenclature of birds listed on the CMS Appendices (Bergen, Norway, 20-25 November 2011). Resolution 10.13 adopted, among other things, the taxonomy used by the Agreement on the Conservation of Albatrosses and Petrels (ACAP) as the Bonn Convention’s standard nomenclature reference for albatrosses and large petrels. In consequence, for certain species the subspecies have been elevated to species level in Appendix II to the Bonn Convention.

Consultation

Section 17(1)(a) of the Legislation Act 2003 states that before the legislative instrument is made, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate.

This Instrument only updates the names of migratory species and therefore makes minor changes to the List.

Previously, the then Department of Sustainability, Environment, Water, Population and Communities (DSEWPC) undertook extensive consultation seeking stakeholder views prior to the 10th Conference of Parties to the Bonn Convention: Bergen Norway, 20‑25 November 2011. Those consulted included relevant Commonwealth departments; state and territory environment and primary industries counterpart agencies; environmental non-government organisations (NGOs): Migratory Wildlife Network, Humane Society International, Australian Marine Conservation Society, Whales Alive, World Wide Fund for Nature, International Fund for Animal Welfare, Wilderness Society, Birds Australia, Wetlands International, Australasian Wader Studies Group, and Whale and Dolphin Conservation Society; and commercial and recreational fishing stakeholders: Commonwealth Fisheries Association, Game Fishing Association of Australia, Recfish Australia, Australian National Sportfishing Association, Boating and Fishing Council, and National Seafood Industry Alliance.

As well, extensive national consultation was conducted throughout the listing of albatrosses on the Appendices of the Bonn Convention, and during the subsequent development of the Agreement on the Conservation of Albatrosses and Petrels (ACAP) with Commonwealth Ministers, State and Territory Ministers, non-government and environmental organisations, and the fishing industry. This included consultations seeking views on the addition of the affected albatross species to the Appendices of the Bonn Convention in 1997, and about the ratification of ACAP in 2001.

As the Instrument only makes minor changes to the List and the Department has previously undertaken consultation on this issue, public consultation was not undertaken before making this Instrument.

The Office of Best Practice Regulation (OBPR) advised that a regulation impact statement is not required (OBPR ID: 23227).

Pursuant to section 209(7) of the Act, the Instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act) but section 42 (disallowance) of the Legislation Act does not apply to the Instrument.

This Instrument commences the day after it is registered.

Authority: Section 209(6) of the Environment Protection and Biodiversity Conservation Act 1999.

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) was enacted to address the need for comprehensive protection of the environment, particularly matters of national environmental significance, and the conservation of biodiversity, including listed migratory species. The Act empowers the Minister for the Environment and Energy to establish and maintain a list of migratory species (the List) as per section 209. This legislative instrument, F2018L00233, aims to correct and update the names of migratory species on the List in alignment with recent taxonomic revisions, particularly those adopted under the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention). The Minister is authorised to make these amendments under section 209(6) of the Act, ensuring the List reflects current scientific nomenclature. This update is crucial for maintaining the accuracy and efficacy of the protections afforded to migratory species under the Act. The enacting body, the Minister for the Environment and Energy, has ensured that these amendments are consistent with the policy objective of conserving migratory species as part of Australia's biodiversity strategy.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 applies to the protection of the environment, particularly matters of national environmental significance, and the conservation of biodiversity, including listed migratory species. This Act extends to the Commonwealth of Australia, providing a national framework for environmental protection and biodiversity conservation. Section 209 of the Act mandates the Minister for the Environment and Energy to establish and maintain a list of migratory species, which is updated as necessary. The list includes native species from various international agreements, such as the Bonn Convention, JAMBA, CAMBA, and ROKAMBA. Section 209(6) of the Act allows the Minister or a delegate to amend the list through a legislative instrument to correct inaccuracies or update species names. The purpose of this particular legislative instrument is to correct and update the scientific names of certain migratory species on the list, reflecting taxonomic revisions and resolutions from the Bonn Convention, such as the adoption of the ACAP taxonomy for albatrosses and large petrels. The changes made are minor, updating the nomenclature without altering the scope or application of the Act. The instrument is subject to the provisions of the Legislation Act 2003, but it is exempt from the disallowance process under section 42 of that Act.

Key Provisions

The primary sections of this legislative instrument (F2018L00233) under the Environment Protection and Biodiversity Conservation Act 1999 (the Act) focus on the updating of the list of migratory species. Section 209 of the Act mandates the Minister for the Environment and Energy to establish a list of migratory species, known as the List, which includes species listed in international agreements such as the Bonn Convention, the Japan-Australian Migratory Bird Agreement (JAMBA), and the China-Australia Migratory Bird Agreement (CAMBA). Section 209(6) allows the Minister or a delegate to amend this list by legislative instrument, specifically to correct inaccuracies or update the names of listed species. This particular instrument updates the scientific names of certain migratory species in the List, aligning with the most recent taxonomic revisions and international agreements. This Act imposes several obligations on the Minister and other entities involved in the protection and conservation of migratory species. The Minister must ensure that the List is accurate and up-to-date, reflecting the latest scientific nomenclature and international agreements. This includes regularly reviewing and amending the List as necessary, as mandated by section 209(6) of the Act. The entities responsible for the enforcement and compliance with the provisions of the Act must also ensure that their activities do not harm listed migratory species and comply with the updated List. There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the updated List itself. However, broader provisions under the Act could lead to offences, penalties, or consequences for actions that harm listed migratory species or contravene the Act’s provisions for their protection and conservation. For example, unauthorised activities that significantly harm listed species could result in substantial fines and potential imprisonment under sections 474 and 475 of the Act, which pertain to offences against the protection of matters of national environmental significance. The maximum penalties for these offences can reach up to $222,000 or imprisonment for up to five years, depending on the severity of the breach. Compliance with the Act is crucial to avoid these potential legal repercussions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.