EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment and Water)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Ecological Communities Amendment (EC174) Instrument 2023
Background
The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection of the environment and the 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: Empodisma peatlands of southwestern Australia, 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 Empodisma peatlands of southwestern Australia met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 2 as endangered because it has a very restricted geographic distribution 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; and,
- Criterion 4 as endangered because the reduction in its integrity across most of its geographic distribution is severe, as indicated by degradation of the community or its habitat, or disruption of important community processes, that is severe.
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 for consideration. 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.
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 (EPBC Act) serves as the primary legislative framework for environmental protection and biodiversity conservation in Australia. It establishes a list of threatened ecological communities, categorising them into critically endangered, endangered, and vulnerable groups to ensure their protection and conservation. Pursuant to this Act, the Minister for the Environment and Water has the authority to amend the list of threatened ecological communities through legislative instruments, as outlined in section 181 and paragraph 184(a) of the EPBC Act. The Environment Protection and Biodiversity Conservation Act 1999 List of Threatened Ecological Communities Amendment (EC174) Instrument 2023 aims to address a specific gap in the protection of ecological communities by adding the Empodisma peatlands of southwestern Australia to the endangered category. This addition follows recommendations from the Threatened Species Scientific Committee, which concluded that these peatlands met the criteria for the endangered category due to their very restricted geographic distribution and severe reduction in integrity, as per the Environment Protection and Biodiversity Conservation Regulations 2000. The instrument was developed through a process of extensive consultation with relevant parties and public exhibition, ensuring that all submissions and expert views were considered in the decision-making process.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, as amended by the List of Threatened Ecological Communities Amendment (EC174) Instrument 2023, applies to all entities and persons within Australia, encompassing federal, state, and territory jurisdictions. This Act is instrumental in the protection and conservation of biodiversity, specifically targeting threatened ecological communities. The amendment under discussion adds the Empodisma peatlands of southwestern Australia to the endangered category, reflecting the urgent need for their conservation due to severe threats to their integrity and geographic distribution. The Act's jurisdiction extends nationwide, ensuring comprehensive coverage and enforcement across all levels of government, while the amendment focuses on the specific ecological community recommended by the Threatened Species Scientific Committee. The inclusion of this community in the endangered category follows rigorous assessment criteria, ensuring that only eligible ecological communities are listed based on their vulnerability to extinction.
Key Provisions
The main operative sections of this instrument (F2023L01207) amend the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (Act). Specifically, section 181 of the Act mandates the establishment of a list of threatened ecological communities divided into critically endangered, endangered, and vulnerable categories. Section 184(a) permits the Minister to amend this list by legislative instrument, which is precisely what this instrument does by including the Empodisma peatlands of southwestern Australia in the endangered category (section 2). This inclusion follows the recommendation of the Threatened Species Scientific Committee and is based on the criteria outlined in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000.
Under the Act, the obligations imposed on the parties or entities governed by this legislation primarily concern the protection and conservation of the listed ecological communities. For the Empodisma peatlands of southwestern Australia, this means that any activities that may threaten the survival of this community are subject to stricter regulatory scrutiny. Parties involved in activities that could impact these peatlands must ensure they comply with the provisions of the Act, which include obtaining necessary approvals or permits, implementing appropriate management measures, and adhering to any specific conditions imposed to mitigate potential threats.
Breach of the obligations imposed by the Act can lead to significant consequences. Under the Act, any person who contravenes an offence provision may be subject to penalties. For example, in the case of threatening an endangered ecological community, the maximum penalty can be substantial, both financially and in terms of criminal liability. The specifics of these penalties are detailed in the relevant sections of the Act, but they generally include fines and, in some cases, imprisonment. Additionally, civil remedies may be available for those who suffer loss or damage due to non-compliance with the Act. The severity of the penalties reflects the importance of protecting endangered ecological communities and the potential long-term environmental impact of their decline.