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 (EC2) Instrument 2021
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(c) of the Act, the Minister may, by legislative instrument, amend the list of threatened ecological communities by transferring items from one category in the List to another category 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 transferring Eastern Suburbs Banksia Scrub of the Sydney Region from the endangered category to the critically endangered category, 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 Eastern Suburbs Banksia Scrub of the Sydney Region met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, as follows:
- Criterion 1 as critically endangered because it has undergone a very severe decline in geographic distribution;
- 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;
- Criterion 4 as critically endangered because it has undergone a very severe reduction in its integrity across most of its geographic distribution, as indicated by a very severe disruption of important community processes.
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 transfer the ecological community from the endangered category to the critically endangered category of 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 on 29 October 2021 for consideration.
Details and Operation
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: sections 181 and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999.
Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 List of Threatened Ecological Communities Amendment (EC2) Instrument 2021 This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Legislative Instrument The purpose of this Instrument is to amend the Environment Protection and Biodiversity Conservation Act 1999 list of threatened ecological communities by transferring the ‘Eastern Suburbs Banksia Scrub of the Sydney Region’ from the endangered category to the critically endangered category in the list. Eastern Suburbs Banksia Scrub of the Sydney Region has been transferred to the critically endangered category of the list because it met the criteria whereby: it has undergone a very severe decline in geographic distribution; it has a very restricted geographic distribution and the nature of its distribution makes it likely that the action of threatening processes could cause it to be lost in the immediate future; and because it has undergone a very severe reduction in its integrity across most of its geographic distribution, as indicated by a very severe disruption of important community processes. Human rights implications This Legislative Instrument does not engage any of the applicable rights or freedoms. Conclusion This Legislative Instrument is compatible with human rights as it does not raise any human rights issues. The Hon Sussan Ley MP Minister for the Environment |
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Australian Parliament to safeguard the environment and biodiversity, including the protection and conservation of threatened ecological communities. One of the Act's key provisions is the establishment of a list of threatened ecological communities, categorised as critically endangered, endangered, or vulnerable. The EPBC Act allows the Minister for the Environment to amend this list through legislative instruments, ensuring that the list reflects the most current scientific assessments and recommendations. The List of Threatened Ecological Communities Amendment (EC2) Instrument 2021 is an example of such an amendment, initiated to address the need for more stringent protection of certain ecological communities. This particular instrument aims to transfer the 'Eastern Suburbs Banksia Scrub of the Sydney Region' from the endangered category to the critically endangered category, reflecting its dire conservation status as recommended by the Threatened Species Scientific Committee. This legislative action underscores the policy objective of the EPBC Act to proactively manage and conserve biodiversity through timely and evidence-based interventions.
Scope and Application
The List of Threatened Ecological Communities Amendment (EC2) Instrument 2021 applies to the Minister for the Environment, who is responsible for the protection and conservation of biodiversity under the Environment Protection and Biodiversity Conservation Act 1999. This legislation is a Commonwealth Act, thus it applies nationally across Australia. The amendment pertains specifically to the transfer of the ‘Eastern Suburbs Banksia Scrub of the Sydney Region’ from the endangered category to the critically endangered category of the list of threatened ecological communities. The criteria for this transfer include severe decline in geographic distribution, very restricted geographic distribution with a high risk of loss due to threatening processes, and severe reduction in ecological integrity. The instrument does not explicitly state any exclusions or thresholds but it does note that the Minister considered only matters relating to eligibility and potential survival effects. The instrument is a legislative instrument under the Legislation Act 2003 and will commence on the day after it is registered on the Federal Register of Legislation. The Act provides for potential extensions or restrictions through subordinate instruments, although this particular instrument does not elaborate on such provisions.
Key Provisions
The key operative sections of the List of Threatened Ecological Communities Amendment (EC2) Instrument 2021 pertain to the reclassification of the Eastern Suburbs Banksia Scrub of the Sydney Region. This amendment is made under sections 181 and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act). Section 181 requires the Minister to establish a list of threatened ecological communities, which is divided into categories such as Critically endangered, Endangered, and Vulnerable. Section 184(c) empowers the Minister to amend this list by transferring items from one category to another, based on recommendations from the Threatened Species Scientific Committee. In this case, the Committee recommended transferring the Eastern Suburbs Banksia Scrub of the Sydney Region from the Endangered category to the Critically endangered category, a proposal that the Minister approved.
The Act imposes specific obligations on the Minister for the Environment, the Threatened Species Scientific Committee, and potentially other stakeholders. The Minister must ensure that the criteria for reclassification are met, as outlined in section 182(1) of the Act. This includes verifying that the ecological community meets the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000. The Threatened Species Scientific Committee is responsible for assessing the ecological community against these criteria and providing a recommendation to the Minister. The Act also requires the Minister to consult with relevant parties and consider public submissions when making such decisions.
There are no explicit offences, penalties, or civil/criminal consequences outlined for breaching the provisions of this particular legislative instrument. However, breaches of the broader Act could lead to penalties. For example, under section 488 of the Act, a person who contravenes a provision of the Act may be liable for a penalty. The penalties can be substantial, including fines of up to $666,666 for individuals and $3,333,330 for bodies corporate, depending on the nature and extent of the contravention. Additionally, criminal proceedings can be initiated for more severe breaches, potentially resulting in imprisonment.
In summary, the amendment involves transferring the Eastern Suburbs Banksia Scrub of the Sydney Region from the Endangered to the Critically endangered category based on specific criteria related to its geographic decline, restricted distribution, and severe reduction in integrity. The process adheres to the legislative framework established by the Act, ensuring that the reclassification is both scientifically grounded and legally compliant. The obligations of the Minister and the Committee are clear and well-defined, while the potential penalties for broader breaches of the Act underscore the seriousness of environmental protection and biodiversity conservation.