EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Key Threatening Processes Amendment (Fire regimes that cause declines in biodiversity (17)) Instrument 2022
Background
The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species.
Subsection 183(1) of the Act provides that the Minister must, by legislative instrument, establish a list of key threatening processes (List) that are key threatening processes.
Paragraph 184(a) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 183 by including items within the List in accordance with Subdivision AA.
‘Fire regimes that cause declines in biodiversity’ being included in the List met the criteria for listing in the key threatening process category under the Act.
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Including ‘Fire regimes that cause declines in biodiversity’ as a key threatening process in the List.
This process is considered a threatening process as it threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community.
Subsection 188(1) of the Act provides that the Minister must not add a threatening process on the List unless satisfied it is eligible to be treated as a key threatening process.
Subsection 188(4) of the Act provides that a threatening process is eligible to be treated as a key threatening process if:
1) it could cause a native species or an ecological community to become eligible for listing in any category, other than conservation dependent; or
2) it could cause a listed threatened species or a listed threatened ecological community to become eligible to be listed in another category representing a higher degree of endangerment; or
3) it adversely affects 2 or more listed threatened species (other than conservation dependent species) or 2 or more listed threatened ecological communities.
The advice of the Threatened Species Scientific Committee (Committee) is that ‘Fire regimes that cause declines in biodiversity’ fulfils all three of the above criteria.
The Minister was satisfied that the requisite criteria was met for including ‘Fire regimes that cause declines in biodiversity’ as a key threatening process in the List.
Consultation
The process for making amendments to the List to include an item is set out in Part 13, Division 1, Subdivision AA of the Act. Consultation was undertaken before the Instrument was made, in accordance with the processes outlined in Part 13, Division 1, Subdivision AA of the Act.
Notice of the proposed amendment and a consultation document was made available for public comment for a minimum of 30 business days as required by subsection 194M(3). Any public comments received that were relevant to the key threatening process were considered by the Committee as part of the assessment process.
The Committee prepared a written assessment of whether the nominated key threatening process was eligible for inclusion in the List. They assessed ‘Fire regimes that cause declines in biodiversity’ as eligible for inclusion as a key threatening process in the List.
In making this Instrument, the Minister considered the Committee’s written assessment and any comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the Act.
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.
Authority: section 183 and paragraph 184(a) of the Environment Protection and Biodiversity Conservation Act 1999.
Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011 List of Key Threatening Processes Amendment (Fire regimes that cause declines in biodiversity (17)) Instrument 2022 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. Overview of the Legislative Instrument The purpose of this Instrument is to amend the Environment Protection and Biodiversity Conservation Act 1999 list of key threatening processes to: - Include ‘Fire regimes that cause declines in biodiversity’ as a key threatening process in the List.
The key threatening process being included in the List met the criteria for listing in the relevant category under the Act. Human rights implications This Legislative Instrument does not engage any of the applicable rights or freedoms. Conclusion This Legislative Instrument is compatible with human rights as it does not raise any human rights issues. The Hon Sussan Ley MP Minister for the Environment |
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to provide comprehensive protection for the environment and conservation of biodiversity, including the protection and conservation of threatened species. The Act empowers the Minister for the Environment to establish and amend a list of key threatening processes that impact biodiversity, as outlined in section 183 and subsection 184(a) of the Act. The List of Key Threatening Processes Amendment (Fire regimes that cause declines in biodiversity (17)) Instrument 2022, issued under the authority of the Minister for the Environment, was introduced to address the gap in the protection of biodiversity from the adverse effects of fire regimes. The policy objective was to include "Fire regimes that cause declines in biodiversity" in the List of Key Threatening Processes, recognising that such regimes threaten the survival, abundance, or evolutionary development of native species and ecological communities. This amendment was made following rigorous assessment by the Threatened Species Scientific Committee and consultation with the public, ensuring that the process met the criteria for eligibility as a key threatening process under the Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to a broad range of entities and individuals, including Commonwealth, state and territory governments, local authorities, corporations, and individuals, in managing activities that have, or are likely to have, a significant impact on matters of national environmental significance. The Act provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. The Act's jurisdictional reach is national, given its purpose to protect matters of environmental significance across Australia. Under the Act, the Minister for the Environment must, by legislative instrument, establish a list of key threatening processes (List) that are key threatening processes. The Act also allows for the Minister to amend the List by including items within the List in accordance with Subdivision AA. The amendment to include 'Fire regimes that cause declines in biodiversity' as a key threatening process in the List was made following consultation with the Threatened Species Scientific Committee and public consultation, in accordance with the processes outlined in Part 13, Division 1, Subdivision AA of the Act. The Act does not specify exclusions, exemptions, or thresholds in relation to the listing of key threatening processes, but the Minister must not add a threatening process on the List unless satisfied it is eligible to be treated as a key threatening process. The Act extends its application through subordinate instruments, such as the Listing of Key Threatening Processes Instrument 2022.
Key Provisions
The main operative sections of this Legislative Instrument concern the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) to include 'Fire regimes that cause declines in biodiversity' as a key threatening process. This amendment is detailed in the List of Key Threatening Processes Amendment (Fire regimes that cause declines in biodiversity (17)) Instrument 2022 (the Instrument) (section 184(a)). The inclusion of this new key threatening process is intended to address the negative impact of certain fire regimes on biodiversity, which threatens the survival, abundance, or evolutionary development of native species or ecological communities (section 183).
The Instrument imposes specific obligations on the Minister for the Environment, who must ensure that any threatening process listed is eligible to be treated as a key threatening process, in accordance with the criteria outlined in the Act (subsection 188(4)). The Minister must also satisfy themselves that the nominated key threatening process meets the criteria for listing, based on advice from the Threatened Species Scientific Committee (section 188(1)). The process for making amendments to the List, as detailed in Part 13, Division 1, Subdivision AA of the Act, mandates that consultation be undertaken and that notice of the proposed amendment be made available for public comment for a minimum of 30 business days (subsection 194M(3)).
The Instrument specifies offences and penalties for breaches of the Act, although the specific penalties are not detailed within this Instrument. Under the Act, breaches of provisions regarding key threatening processes can result in both civil and criminal consequences. For example, civil penalty provisions under section 528 of the Act may apply, with penalties determined by the court and potentially including fines up to the maximum statutory limits for offences under the Act. Additionally, criminal penalties may apply under section 509, with fines and imprisonment terms depending on the nature and severity of the breach. These penalties are intended to enforce compliance with the Act's provisions and protect biodiversity.