EXPLANATORY STATEMENT
Issued by the authority of the Minister for the Environment and Water
Environment Protection and Biodiversity Conservation Act 1999
List of Migratory Species Amendment (1) Instrument 2024
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 migratory species.
Subsection 209(1) of the Act provides that the Minister must, by legislative instrument, establish a list of migratory species. This list referred to in subsection 209(1) of the Act is contained in the Declaration under s209 of the Environment Protection and Biodiversity Conservation Act 1999 - List of migratory species (13/09/2000) (List).
Paragraph 209(1)(b) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List, as necessary, to include all species required to be included in the List under subsection 209(3).
Subsection 209(3) of the Act provides for the inclusion of certain species in the List. In particular, paragraph 209(3)(a) of the Act requires that the list of migratory species include all native species that are from time to time included in the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention).
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Including the following species:
- Carcharias taurus
- Balaenoptera omurai
- Deleting the following species:
- All species in the family Muscicapidae (sensu lato), including the sub-family Sylviinae, formerly listed as the family Sylviidae, for which Australia is a Range State.
Amendments to Appendix I and II of the Bonn Convention were agreed at the 14th Conference of the Parties in Samarkand, Uzbekistan on 17 February 2024. The Grey Nurse Shark (Carcharias taurus) was added to Appendix I and II. Australia is a Range State for this species, and it is thus added to the List.
At the 14th Conference of Parties of the Bonn Convention, Parties adopted guidance on the treatment of species included within aggregated families listed under Appendix II of the Convention. The guidance listed 86 species that met the Convention’s criteria (i.e. a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries and which have an unfavourable conservation status).
Five bird species that are currently listed migratory under the Act and included within the family Muscicapidae (sensu lato), including the sub-family Sylviinae, formerly listed as the family Sylviidae, for which Australia is a Range State under Appendix II of the Bonn Convention do not have an unfavourable conservation status according to the International Union for Conservation of Nature Red List and there is limited evidence for their migration across national boundaries. Therefore, these species do not meet the Bonn Convention’s eligibility for Appendix II listing. For the purposes of section 209 of the Act, these species are no longer eligible to be listed as migratory species.
Recent taxonomic changes have split Bryde’s Whale (Balaenoptera edeni) into two species – Bryde’s Whale and Omura’s Whale (Balaenoptera omurai). Both species are listed on Appendix II of the Bonn Convention. Bryde’s Whale has been listed migratory under the Act since 2002. Both species occur in Australian waters and as such, Omura’s Whale (Balaenoptera omurai) is now required to be added to the migratory species list.
Consultation
The Department of Climate Change, Energy, the Environment and Water undertook extensive consultation regarding the proposed listing with relevant Commonwealth departments, state and territory environment and primary industries agencies, environmental non-governmental organisations and commercial and recreational fishing stakeholders.
Broad support for the inclusion of Grey Nurse Shark (Carcharias taurus) was received from those organisations and management agencies that responded. It was recognised that Grey Nurse Shark (Carcharias taurus) is already listed as a threatened species under the Act and, as such, there are limited domestic ramifications from including the species in the migratory species list.
BirdLife Australia was consulted on the removal of five bird species from the List. They supported the proposal and agreed that these species do not meet the Bonn Convention’s listing requirements.
Given the extensive consultation undertaken on the proposed listing contained in the legislative instrument, it was not necessary to consult on the text of the instrument itself.
Details/ Operation
Details of the Instrument are set out in Attachment A.
Other
The Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
The Instrument is made under paragraph 209(1)(b) of the Act. It is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).
The Instrument is exempt from disallowance under subsection 209(7) of the Act. It is also exempt from sunsetting in accordance with item 1 of the table in section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015. This is because the Instrument has a primary purpose of giving effect to Australia’s obligations under the Bonn Convention.
Section 48A of the Legislation Act provides that where a legislative instrument only repeals or amends another instrument, without making any application, saving or transitional provisions relating to the amendment or repeal, that instrument is automatically repealed.
The Instrument commences the day after registration.
ATTACHMENT A
Details of the List of Migratory Species Amendment (1) Instrument 2024
Section 1 – Name
This section provides that the title of the instrument is the List of Migratory Species Amendment (1) Instrument 2024 (the Instrument).
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered.
Section 3 – Authority
This section provides that the Instrument is made under section 209 of the Environment Protection and Biodiversity Conservation Act 1999.
Section 4 – Schedules
This section provides that the Declaration under section 209 of the Environment Protection and Biodiversity Conservation Act 1999 - List of migratory species (13/09/2000) is amended as set out in the applicable items in Schedule 1, and any other item in Schedule 1 to the Instrument has effect according to its terms.
Schedule 1- Amendments
Item 1 – Mammals
Item 1 amends the list to include in the appropriate position each of the following species:
- Balaenoptera omurai
Item 2 – Birds
Item 2 amends the list to delete in the appropriate position each of the following species:
- All species in the family Muscicapidae (sensu lato), including the sub-family Sylviinae, formerly listed as the family Sylviidae, for which Australia is a Range State.
The purpose of this amendment is to remove the following species within that category that are no longer eligible under the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals:
- Monarcha frater
- Monarcha melanopsis
- Myiagra cyanoleuca
- Rhipidura rufifrons
- Symposiachrus trivirgatus
Item 3 – Fish
Item 3 amends the list to include in the appropriate position each of the following species:
- Carcharias taurus
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
List of Migratory Species Amendment (1) Instrument 2024
This Disallowable 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 Disallowable Legislative Instrument
The purpose of this Instrument is to amend the Declaration under s209 of the Environment Protection and Biodiversity Conservation Act 1999 - List of migratory species (13/09/2000) to:
- Include in the appropriate position each of the following species:
- Carcharias taurus
- Balaenoptera omurai
- Delete in the appropriate position the following species:
- All species in the family Muscicapidae (sensu lato), including the sub-family Sylviinae, formerly listed as the family Sylviidae, for which Australia is a Range State.
The category being deleted includes the following bird species that are no longer eligible under the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals:
- Monarcha frater
- Monarcha melanopsis
- Myiagra cyanoleuca
- Rhipidura rufifrons
- Symposiachrus trivirgatus
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Tanya Plibersek MP
Minister for the Environment and Water