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 (EC183) 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: Kurri sand swamp woodland of the Sydney Basin bioregion, 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 Kurri sand swamp woodland of the Sydney Basin bioregion 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 it has a restricted to 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.
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 (Act) was enacted to protect the environment and conserve biodiversity, including threatened ecological communities. Pursuant to the Act, the Minister for the Environment and Water has the authority to amend the list of threatened ecological communities by legislative instrument. The List of Threatened Ecological Communities Amendment (EC183) Instrument 2023 amends the list by including Kurri sand swamp woodland of the Sydney Basin bioregion in the endangered category, as recommended by the Threatened Species Scientific Committee. This amendment follows the Committee's assessment that this ecological community meets the eligibility criteria for the endangered category under the Act. The instrument was developed in accordance with the Act's requirements, including public consultation, and will commence on the day after it is registered on the Federal Register of Legislation.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, through the List of Threatened Ecological Communities Amendment (EC183) Instrument 2023, specifically targets the inclusion of the Kurri sand swamp woodland of the Sydney Basin bioregion in the endangered category of the list of threatened ecological communities. This Act applies to all persons, entities, and industries within the Commonwealth of Australia, thereby extending its regulatory reach across the entire nation. The amendment is made under the authority of the Minister for the Environment and Water and is intended to bolster the protection and conservation of biodiversity. The instrument was developed following consultation with the Threatened Species Scientific Committee and public exhibition, ensuring a thorough review process. Notably, the Act does not provide specific exclusions or thresholds for inclusion in the endangered category; however, eligibility is determined by specific criteria outlined in the Environment Protection and Biodiversity Conservation Regulations 2000. This legislative instrument is subject to further extension or restriction through subordinate instruments as deemed necessary by the Minister.
Key Provisions
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) contains provisions that mandate the establishment of a list of threatened ecological communities, which are divided into categories such as critically endangered, endangered, and vulnerable (sections 181 and 184(a)). The List of Threatened Ecological Communities Amendment (EC183) Instrument 2023 amends this list by including the Kurri sand swamp woodland of the Sydney Basin bioregion in the endangered category. This amendment is based on recommendations from the Threatened Species Scientific Committee, which assessed the eligibility of the Kurri sand swamp woodland under the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000.
The obligations imposed by this instrument on relevant parties and entities include adherence to the provisions of the EPBC Act, particularly in relation to the conservation and protection of the listed endangered ecological community. This may involve taking specific actions to prevent further decline, facilitating restoration efforts, and mitigating any threats that could exacerbate the community's endangered status. The amendment requires stakeholders to consider the ecological needs of the Kurri sand swamp woodland and to avoid activities that could adversely impact its survival.
The Act imposes penalties for breaches related to the protection of threatened ecological communities. For instance, knowingly or recklessly taking an action that is likely to harm a listed ecological community can result in substantial fines and imprisonment. Specifically, under section 474 of the EPBC Act, an individual can be fined up to AUD 525,000 or imprisoned for up to five years, or both, for knowingly taking an action that harms a threatened ecological community. Corporations can face even higher penalties, with fines reaching up to AUD 2,625,000. These provisions underscore the seriousness with which the Act treats the protection of endangered ecological communities and the importance of compliance with its requirements.