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 (EC171) 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 endangered category: Coastal Swamp Sclerophyll Forest of New South Wales and South East Queensland as recommended by the Threatened Species Scientific Committee (Committee), having regard to its eligibility for the endangered category under subsection 182(2) of the Act.
The Committee concluded that the Coastal Swamp Sclerophyll Forest of New South Wales and South East Queensland met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as vulnerable because it has undergone a substantial decline in geographic distribution;
- Criterion 2 as 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 near future;
- Criterion 4 as endangered because it has undergone a severe reduction in integrity across most of its geographic distribution, as indicated by a severe degradation of the community or its habitat or a severe disruption of important community processes.
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 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 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 July 2021 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, was introduced to address the pressing need for the protection and conservation of Australia's biodiversity, including threatened ecological communities. The Act provides a framework for the identification and protection of these communities, with an emphasis on their conservation status and the mitigating actions required to prevent their decline. Under the authority granted by the Act, the Minister for the Environment has the responsibility to amend the list of threatened ecological communities, ensuring that these communities receive the necessary protections to safeguard their survival.
The List of Threatened Ecological Communities Amendment (EC171) Instrument 2021 was introduced to amend the list by adding the Coastal Swamp Sclerophyll Forest of New South Wales and South East Queensland to the endangered category. This amendment was based on the recommendation of the Threatened Species Scientific Committee, which concluded that the ecological community met the criteria for inclusion in the endangered category due to its substantial decline in geographic distribution, very restricted geographic distribution, and severe reduction in integrity. The policy objective of this instrument is to provide enhanced protection for this ecological community, ensuring its conservation and promoting its recovery.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (Act) applies to all persons, entities, and industries within Australia that may impact the environment or biodiversity. This includes any conduct or transactions that could affect the ecological communities listed under the Act. The geographical scope of the Act is national, extending across the Commonwealth, all states and territories of Australia. This legislative instrument amends the List of Threatened Ecological Communities by adding Coastal Swamp Sclerophyll Forest of New South Wales and South East Queensland to the endangered category, following the recommendation of the Threatened Species Scientific Committee and considering specific eligibility criteria. The Act does not specify exclusions or exemptions; however, the application of its provisions may be subject to further regulation through subordinate instruments. The inclusion of this ecological community in the endangered category aims to protect it and prevent its further decline, ensuring that all necessary measures are taken to conserve its integrity and survival.
Key Provisions
The primary operative sections of the List of Threatened Ecological Communities Amendment (EC171) Instrument 2021 involve the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) to include Coastal Swamp Sclerophyll Forest of New South Wales and South East Queensland in the endangered category of the List of Threatened Ecological Communities (section 181). This amendment is made pursuant to the authority provided in section 184(a) of the Act, which allows the Minister to alter the List by legislative instrument. The decision to include this ecological community in the endangered category is based on the recommendations of the Threatened Species Scientific Committee and their findings that it meets the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000.
The Act imposes specific obligations on the parties and entities it governs, particularly in relation to the protection and conservation of threatened ecological communities. These obligations include adhering to the provisions of the Act and the Regulations, which govern the protection of the identified ecological community. The Act mandates that any actions that may impact the listed threatened ecological communities must be assessed and approved, where necessary, by the relevant authorities. Additionally, the Act requires entities to avoid actions that could further threaten the survival of these communities.
Breaching the provisions of the Act or the Regulations can lead to various consequences, including both civil and criminal penalties. For example, if a person or entity fails to comply with a requirement or prohibition under the Act, they may be subject to civil penalties, including fines. The maximum penalty for contravening a civil penalty provision is generally significant, often amounting to hundreds of thousands of dollars for corporations, and tens of thousands for individuals, depending on the severity and intent of the breach. Furthermore, in cases where the breach is more egregious or involves intentional misconduct, criminal penalties may apply. These can include substantial fines and imprisonment, reflecting the seriousness of the environmental harm caused by non-compliance.