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 (EC176) 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 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: Ben Halls Gap Sphagnum Moss Cool Temperate Rainforest, 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 Ben Halls Gap Sphagnum Moss Cool Temperate Rainforest met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- 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 5 as critically endangered because its rate of continuing detrimental change is very severe as indicated by intensification, across most of its geographic distribution, in degradation, or disruption of important community processes, that is very 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 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 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.
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 was enacted to provide comprehensive protection for the environment and biodiversity in Australia. This Act, administered by the Parliament of Australia, aims to safeguard threatened species and ecological communities by listing them under categories such as Critically Endangered, Endangered, and Vulnerable. The List of Threatened Ecological Communities Amendment (EC176) Instrument 2022 is an instrument introduced to address a gap in the protection of specific ecological communities. This legislative amendment was prompted by recommendations from the Threatened Species Scientific Committee, which assessed the eligibility of certain ecological communities for inclusion in the critically endangered category based on their restricted geographic distribution and severe rates of degradation. The policy objective of this instrument is to enhance the protection of ecological communities by including the Ben Halls Gap Sphagnum Moss Cool Temperate Rainforest in the critically endangered category, thereby ensuring that appropriate measures are implemented to mitigate threatening processes and prevent their extinction.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to the protection of the environment and biodiversity across Australia, and this specific instrument concerns the listing of threatened ecological communities under the Act. The Act applies to all persons, entities, and industries within Australia, particularly those that may impact or are impacted by ecological communities. This legislative instrument amends the list of threatened ecological communities by including the Ben Halls Gap Sphagnum Moss Cool Temperate Rainforest in the critically endangered category. The geographic reach of this Act is national, as it applies to all parts of Australia. The inclusion in the List under this Act is based on assessments conducted by the Threatened Species Scientific Committee, which considered the ecological community’s eligibility for the critically endangered category under specific criteria. This instrument does not provide for any exclusions, exemptions, or thresholds but operates under the authority granted by the Act. The application and scope of the Act may be further extended or restricted through subordinate instruments as authorised by the primary legislation.
Key Provisions
The main operative sections of this instrument involve the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by adding the Ben Halls Gap Sphagnum Moss Cool Temperate Rainforest to the list of threatened ecological communities in the critically endangered category (section 181 and paragraph 184(a)). This amendment is based on the recommendations of the Threatened Species Scientific Committee, which assessed the ecological community against specific criteria outlined in the Environment Protection and Biodiversity Conservation Regulations 2000. The Committee determined that the ecological community meets the criteria for inclusion in the critically endangered category due to its very restricted geographic distribution and severe ongoing detrimental change (regulation 7.02).
The Act imposes several obligations on the Minister for the Environment and relevant stakeholders. The Minister must, by legislative instrument, establish and maintain a list of threatened ecological communities and may amend this list in accordance with the Act (section 181 and paragraph 184(a)). This process includes consulting with parties who have relevant expertise and seeking public submissions on draft assessments. The Threatened Species Scientific Committee plays a critical role in assessing the eligibility of ecological communities for inclusion in the list and provides advice to the Minister. Additionally, the Act requires that any amendments to the list consider the potential impact on the survival of the ecological community being listed.
Breaches of the EPBC Act can lead to various civil and criminal consequences. Under the Act, unauthorised actions that adversely affect a listed threatened species, ecological community, or their critical habitat can result in penalties. For example, offences related to damaging or destroying critical habitat can incur substantial fines. Specifically, individuals can be fined up to $66,000, while corporations face fines up to $330,000. Further, the Act provides for enforcement actions by authorised officers, including the issuance of infringement notices and the ability to seek court orders to prevent further breaches. These provisions ensure that the Act’s objectives of protecting and conserving biodiversity are upheld effectively.