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 (EC178) Instrument 2022
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: Dunn’s white gum (Eucalyptus dunnii) moist forest in north-east 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 Dunn’s white gum (Eucalyptus dunnii) moist forest in north-east 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 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: 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.
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 to protect the environment and conserve biodiversity, was updated through the Environment Protection and Biodiversity Conservation Act 1999 List of Threatened Ecological Communities Amendment (EC178) Instrument 2022. This legislative instrument addresses the need to include the Dunn’s white gum (Eucalyptus dunnii) moist forest in north-east New South Wales and south-east Queensland in the endangered category, as recommended by the Threatened Species Scientific Committee. The Committee’s recommendation was based on the ecological community’s very restricted geographic distribution and the severe reduction in its integrity, meeting the eligibility criteria for the endangered category under the Act. The Minister for the Environment and Water, having considered the Committee's advice and public submissions, decided to include this ecological community in the endangered category to mitigate its potential loss and improve its chances of survival.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the protection of the environment and the conservation of biodiversity, including threatened ecological communities. The EPBC Act provides the legal framework for the Minister for the Environment and Water to establish and amend a list of threatened ecological communities. This legislative instrument amends the list to include Dunn’s white gum (Eucalyptus dunnii) moist forest in north-east New South Wales and south-east Queensland in the endangered category, based on the recommendation of the Threatened Species Scientific Committee. The Act applies nationally, and this amendment is effective across the specified geographic areas where the ecological community is located. The instrument does not provide for any exclusions or exemptions; it specifically targets the inclusion of the identified ecological community in the endangered category. The Act allows for further regulation and detail to be provided through subordinate instruments, which may further define or restrict the application of this amendment.
Key Provisions
The key operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to this amendment are sections 181 and 184(a). Section 181 mandates the Minister to establish a list of threatened ecological communities, divided into Critically Endangered, Endangered, and Vulnerable categories, whereas section 184(a) empowers the Minister to amend this list through a legislative instrument. The List of Threatened Ecological Communities Amendment (EC178) Instrument 2022 modifies the list by adding Dunn’s white gum (Eucalyptus dunnii) moist forest in north-east New South Wales and south-east Queensland to the Endangered category, based on recommendations from the Threatened Species Scientific Committee. This addition is justified under Criterion 2 due to its very restricted geographic distribution and vulnerability to threatening processes, and under Criterion 4 due to severe degradation of its integrity.
The Act imposes obligations on various parties, including the Minister, who must establish and amend the list of threatened ecological communities in accordance with the Act and the regulations. The Minister must consider the eligibility of the ecological community for inclusion in the List and the potential impact on the survival of the community. The Threatened Species Scientific Committee is also responsible for providing expert advice and assessments, which the Minister must consider before making a decision. Additionally, the Act requires consultation with the public and parties with relevant expertise before any amendment to the List is made. Public comments on the draft assessment are sought, and all submissions are considered by the Committee and forwarded to the Minister.
Breaches of the obligations and requirements set out in the Act can lead to various offences and penalties. While the specific consequences for non-compliance are not detailed in the explanatory statement, it is known that breaches of the EPBC Act can result in both civil and criminal penalties. For instance, individuals or entities that engage in activities that threaten a listed ecological community can face fines and imprisonment. The maximum penalties for such offences can vary depending on the severity of the breach and the specific provisions of the Act and related regulations. For example, under the EPBC Act, individuals can face fines of up to $330,000 and imprisonment for up to five years for offences involving the destruction or damage of listed threatened species or ecological communities.