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 (EC181) 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: Grey box-grey gum wet forest of subtropical eastern 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 Grey box-grey gum wet forest of subtropical eastern Australia met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as vulnerable because its decline in geographic distribution is substantial;
- Criterion 2 as endangered because its geographic distribution is 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 (EPBC Act) is a cornerstone of Australian environmental legislation, aiming to protect the environment and conserve biodiversity, including threatened ecological communities. Enacted by the Commonwealth Parliament, the Act establishes a framework for listing and protecting ecological communities deemed threatened, with the list maintained and updated by the Minister for the Environment and Water. The EPBC Act 1999 addresses the gap in environmental protection by providing a structured approach to identifying and safeguarding ecological communities at risk, ensuring their survival and promoting biodiversity conservation. The List of Threatened Ecological Communities Amendment (EC181) Instrument 2022, issued under the authority of the Minister, is an amendment to the EPBC Act designed to include the Grey box-grey gum wet forest of subtropical eastern Australia in the endangered category of the threatened ecological communities list. This amendment follows a recommendation by the Threatened Species Scientific Committee, which assessed the ecological community against specified criteria, concluding its eligibility for inclusion based on substantial decline, restricted distribution, and severe reduction in integrity. The amendment aims to protect this vulnerable ecosystem and ensure its conservation, aligning with the policy objective of the EPBC Act to safeguard biodiversity.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (Act) is a Commonwealth legislation that provides for the protection of the environment and the conservation of biodiversity in Australia. The Act applies to all persons, entities, industries, conduct, or transactions within the jurisdiction of the Commonwealth of Australia. The Act's provisions extend to the protection and conservation of threatened ecological communities, including their inclusion in a list of threatened ecological communities. The Act allows for the amendment of this list by the Minister for the Environment and Water, who must consider recommendations from the Threatened Species Scientific Committee. The geographic reach of the Act is national, and it is subject to amendments through subordinate instruments, such as the List of Threatened Ecological Communities Amendment (EC181) Instrument 2022, which amends the list by including certain ecological communities in the endangered category based on scientific assessments. This legislative instrument is subject to consultation and public exhibition requirements as outlined in the Act, and it will commence on the day after it is registered on the Federal Register of Legislation.
Key Provisions
The primary operative sections of this legislative instrument concern the amendment of the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999. Specifically, section 181 requires the Minister to establish 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 including items through a legislative instrument, in line with Part 13, Division 1, Subdivision AA of the Act. The current instrument amends the list by adding the Grey box-grey gum wet forest of subtropical eastern Australia to the endangered category, following the recommendation of the Threatened Species Scientific Committee.
The Act imposes several obligations on parties and entities governed by it. The Minister is required to establish and amend the list of threatened ecological communities, taking into account the recommendations of the Threatened Species Scientific Committee. This involves conducting thorough assessments and considering relevant expert advice. The Committee, in turn, must evaluate the eligibility of ecological communities for inclusion on the list, based on specified criteria. Public consultation is a critical part of the process, necessitating the Minister to place draft assessments on public exhibition and consider all submissions received. The Minister must also ensure that the inclusion of an ecological community in the endangered category is justified by its eligibility and the potential impact on its survival.
Under this instrument, failure to comply with the obligations or requirements outlined in the Environment Protection and Biodiversity Conservation Act 1999 could result in various civil or criminal consequences. The Act itself does not specify particular offences, penalties, or consequences for breaches within this context. However, breaches of other provisions in the Act can lead to civil penalties for individuals (up to $66,600) and corporations (up to $333,300) for each offence, as well as criminal penalties, which can include imprisonment and fines. These penalties are determined by the severity of the breach and the intent behind it. Given the significance of the ecological community listed, any actions that undermine its protection or conservation could potentially result in significant legal repercussions.