EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Ecological Communities Amendment (EC150) Instrument 2021
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 ecological communities.
Under section 181 of the Act, the Minister must, by legislative instrument, establish a list of threatened ecological communities (List) divided into the following categories: Critically endangered; Endangered; and Vulnerable.
Under paragraph 184(a) of the Act, the Minister may, by legislative instrument, amend the list of threatened ecological communities by including items in the List in accordance with Part 13, Division 1, Subdivision AA of the Act.
Purpose of the Instrument
The purpose of this instrument is to amend the list by including in the critically endangered category: Plains mallee box woodlands of the Murray Darling Depression, Riverina and Naracoorte Coastal Plain Bioregions as recommended by the Threatened Species Scientific Committee (Committee), having regard to its eligibility for the critically endangered category under subsection 182(1) of the Act.
The Committee concluded that the Plains mallee box woodlands of the Murray Darling Depression, Riverina and Naracoorte Coastal Plain Bioregions met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as critically endangered because it has undergone a very severe decline in geographic distribution;
- Criterion 2 as critically endangered because its geographic distribution is very restricted, and the nature of its distribution makes it likely that the action of a threatening process could cause it to be lost in the immediate future; and
- Criterion 4 as critically endangered because it has undergone a very severe reduction in integrity across most of its geographic distribution, as indicated by a very severe degradation of the community or its habitat.
On the basis of the assessment and advice of the Committee, the Minister was satisfied that this ecological community is eligible to be included in the critically endangered category. In deciding to include it in the list, the Minister 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
Consultation to amend the list of threatened ecological communities under the Act to include the 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 assessment 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 considered by the Committee and forwarded to the Minister on 30 September 2020 for consideration.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
This instrument will commence on the day after it is registered on the Federal Register of Legislation.
Authority: section 181 and paragraph 184(a) of the Environment Protection and Biodiversity Conservation Act 1999.
Overview
The Environment Protection and Biodiversity Conservation Act 1999, enacted by the Parliament of Australia, addresses the need for comprehensive environmental protection and biodiversity conservation, including the listing and safeguarding of threatened ecological communities. This Act mandates the establishment of a list of threatened ecological communities, which are categorized into critically endangered, endangered, and vulnerable groups, with the Minister for the Environment having the authority to amend this list through legislative instruments. The policy objective underpinning this Act is to provide a structured approach to the conservation of biodiversity, ensuring that ecological communities facing severe threats are identified and protected. The List of Threatened Ecological Communities Amendment (EC150) Instrument 2021 furthers this objective by specifically recommending the inclusion of Plains mallee box woodlands of the Murray Darling Depression, Riverina, and Naracoorte Coastal Plain Bioregions in the critically endangered category, based on rigorous assessment by the Threatened Species Scientific Committee.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 provides for the protection and conservation of biodiversity in Australia, including the listing of threatened ecological communities. Pursuant to this Act, the Minister for the Environment has amended the list of threatened ecological communities by including Plains mallee box woodlands of the Murray Darling Depression, Riverina and Naracoorte Coastal Plain Bioregions in the critically endangered category. This amendment was made on the basis of an assessment by the Threatened Species Scientific Committee, which concluded that these ecological communities met the criteria for the critically endangered category due to a very severe decline in geographic distribution, very restricted geographic distribution, and very severe reduction in integrity across most of their geographic distribution. This amendment applies to the specified ecological communities and the Act itself applies to all persons, entities and industries within Australia. The amendment is a legislative instrument under the Legislation Act 2003 and will commence on the day after it is registered on the Federal Register of Legislation.
Key Provisions
The primary operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) involved in this amendment are sections 181 and 184(a). Section 181 mandates the Minister to establish a list of threatened ecological communities, categorising them into Critically endangered, Endangered, and Vulnerable. Section 184(a) permits the Minister to amend this list by legislative instrument, which includes adding new items to the list of threatened ecological communities. The List of Threatened Ecological Communities Amendment (EC150) Instrument 2021 specifically adds Plains mallee box woodlands of the Murray Darling Depression, Riverina and Naracoorte Coastal Plain Bioregions to the critically endangered category, as recommended by the Threatened Species Scientific Committee.
This amendment imposes specific obligations on the parties and entities governed by the EPBC Act. Firstly, it mandates the Minister to maintain and update the list of threatened ecological communities in accordance with the criteria set out in the Act and the Environment Protection and Biodiversity Conservation Regulations 2000. The amendment also requires relevant authorities to consider the conservation status of the Plains mallee box woodlands when making decisions under the Act, ensuring that any activities that might affect these woodlands are assessed for their potential impact on this critically endangered ecological community. Additionally, the amendment necessitates that public consultation be undertaken, as outlined in Part 13, Division 1, Subdivision AA of the Act, including placing a draft assessment on public exhibition and seeking comments from parties with relevant expertise.
The EPBC Act imposes penalties and consequences for non-compliance with its provisions. For instance, under section 501, a person who contravenes a prohibition or condition in a threat abatement plan, which may be created under the Act to protect threatened ecological communities, is liable to a civil penalty of up to $1.1 million for a corporation and $220,000 for an individual. Additionally, under section 502, a person who intentionally, recklessly, or negligently contravenes any other provision of the Act is liable to a fine of up to $66,000 for an individual and $330,000 for a corporation. Furthermore, under section 508, the Act provides for criminal penalties, including fines and imprisonment, for more serious offences, such as wilful interference with a threatened species or community. The maximum penalties for these offences are detailed in the relevant sections of the Act, ensuring that there are significant deterrents against non-compliance.