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 (EC182) 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 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: Honeymyrtle shrubland on limestone ridges of the Swan Coastal Plain Bioregion, as recommended by the Threatened Species Scientific Committee (Committee), having regard to its eligibility for the critically endangered category under subsection 182(2) of the Act.
The Committee concluded that the Honeymyrtle shrubland on limestone ridges of the Swan Coastal Plain Bioregion met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as vulnerable based on an estimated substantial decline in geographic distribution relative to the longer-term;
- Criterion 2 as critically 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 immediate future; and,
- Criterion 4 as vulnerable because the reduction in its integrity across most of its geographic distribution is substantial, as indicated by degradation of the community or its habitat, or disruption of important community processes, that is substantial.
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 this 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) is central to Australia's efforts to protect the environment and conserve biodiversity, including threatened ecological communities. This Act mandates the listing of such communities, which are categorised into critically endangered, endangered, and vulnerable statuses, with the Minister responsible for these listings and amendments. The Environment Protection and Biodiversity Conservation Act 1999 List of Threatened Ecological Communities Amendment (EC182) Instrument 2023 was introduced to address a specific gap identified in the protection of ecological communities by amending the list to include the Honeymyrtle shrubland on limestone ridges of the Swan Coastal Plain Bioregion in the critically endangered category. This amendment was based on recommendations from the Threatened Species Scientific Committee, which evaluated the ecological community against specified criteria, concluding that it met the necessary conditions for inclusion due to its very restricted geographic distribution and the high likelihood of imminent loss. The policy objective underpinning this legislative instrument is to enhance the protection of critically endangered ecological communities, thereby supporting their survival and conservation.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) serves as the legislative framework for the protection of the environment and the conservation of biodiversity within Australia. Under the authority of the Minister for the Environment and Water, the Act facilitates the establishment and amendment of a list of threatened ecological communities, which are categorised into critically endangered, endangered, and vulnerable statuses. The Act applies to the entire Commonwealth of Australia, encompassing all entities and persons within its jurisdiction. However, specific exemptions and thresholds may apply depending on the particular provisions of the Act or its subordinate instruments. The recently amended List of Threatened Ecological Communities, as per the List of Threatened Ecological Communities Amendment (EC182) Instrument 2023, includes the Honeymyrtle shrubland on limestone ridges of the Swan Coastal Plain Bioregion in the critically endangered category, following recommendations from the Threatened Species Scientific Committee. This amendment reflects the ecological community's eligibility based on its restricted geographic distribution and the likelihood of imminent loss due to threatening processes. The legislative instrument extends the application of the Act by incorporating this new category and will come into effect upon registration on the Federal Register of Legislation.
Key Provisions
The main operative sections of the List of Threatened Ecological Communities Amendment (EC182) Instrument 2023 are found in sections 2 to 6, where the Act is amended by including the Honeymyrtle shrubland on limestone ridges of the Swan Coastal Plain Bioregion in the critically endangered category of the list of threatened ecological communities (section 3). This amendment is based on the recommendation of the Threatened Species Scientific Committee, which considered the eligibility of the ecological community under subsection 182(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Act) (section 4). The amendment specifies that the ecological community meets the criteria for the critically endangered category due to its very restricted geographic distribution and the likelihood of its loss in the immediate future due to a threatening process (section 5). The amendment also notes the ecological community's eligibility under criteria 1 and 4, albeit for the vulnerable category, highlighting the substantial decline in its geographic distribution and the degradation of its integrity (section 6).
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, it mandates that the Minister, in accordance with section 181, establish a list of threatened ecological communities divided into critically endangered, endangered, and vulnerable categories (section 2). The Act further requires that any amendments to this list, such as the inclusion of the Honeymyrtle shrubland on limestone ridges, be made by legislative instrument under paragraph 184(a) (section 3). Additionally, the Act stipulates that the Minister must consider the recommendations of the Threatened Species Scientific Committee when deciding to include an ecological community in the list and must only consider matters relating to the eligibility and survival of the ecological community (section 4). The Act also requires that consultation processes be undertaken, including public exhibition of a draft assessment and direct consultation with parties having relevant expertise, to gather views and submissions which are then considered by the Committee and forwarded to the Minister for decision-making (section 5).
Breach of the provisions of the Environment Protection and Biodiversity Conservation Act 1999 can result in significant civil and criminal consequences. Under section 516 of the Act, a person who contravenes a provision of the Act can be subject to a civil penalty not exceeding the greater of three times the benefit obtained from the contravention, $330,000, or, for a continuing failure to comply with a direction, $22,000 for each day of the contravention after the direction was given. Additionally, under section 517 of the Act, a person who engages in conduct that constitutes an offence against the Act can be subject to a fine not exceeding the greater of $210,000, three times the benefit obtained from the conduct, or, in the case of a continuing offence, $11,000 for each day of the offence after the conduct began. These provisions highlight the seriousness with which the Act treats breaches and the potential penalties for non-compliance.