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 (EC55) Instrument 2022
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(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: Brogo Vine Forest of the South East Corner 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 Brogo Vine Forest of the South East Corner 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 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 on 30 March 2022 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 List of Threatened Ecological Communities Amendment (EC55) Instrument 2022 was enacted to amend the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (Act). The instrument was introduced to address the gap in the existing protection of the Brogo Vine Forest of the South East Corner Bioregion, which had been identified as meeting the criteria for inclusion in the endangered category. The instrument was enacted by the Parliament of Australia and is intended to further the policy objective of conserving biodiversity by ensuring that threatened ecological communities receive the necessary protection under the Act. The instrument was developed following consultation with relevant parties and the Threatened Species Scientific Committee, which provided the necessary advice to the Minister for the Environment.
Scope and Application
The List of Threatened Ecological Communities Amendment (EC55) Instrument 2022 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 Act provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened ecological communities. The Instrument amends the list of threatened ecological communities by including the Brogo Vine Forest of the South East Corner Bioregion in the endangered category, as recommended by the Threatened Species Scientific Committee. The Committee concluded that the Brogo Vine Forest met the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, and the Minister was satisfied that this ecological community is eligible to be included in the endangered category. The Instrument extends to the whole of Australia, and its provisions apply to all persons, entities, industries, conduct, or transactions that may impact the listed ecological community.
The Instrument does not provide for any exclusions, exemptions, or thresholds. However, the application of the Instrument may be extended or restricted through subordinate instruments, such as regulations or guidelines, which may provide further detail on the specific measures required to protect the listed ecological community. The Instrument is a legislative instrument for the purposes of the Legislation Act 2003, and it will commence on the day after it is registered on the Federal Register of Legislation.
Key Provisions
The main operative sections of the List of Threatened Ecological Communities Amendment (EC55) Instrument 2022 pertain to the inclusion of the Brogo Vine Forest of the South East Corner Bioregion in the endangered category of the List under the Environment Protection and Biodiversity Conservation Act 1999 (section 181 and paragraph 184(a)). This legislative instrument mandates the Minister to amend the list by adding this ecological community to the endangered category, based on the recommendation of the Threatened Species Scientific Committee. The decision was grounded on the Committee's assessment that the Brogo Vine Forest meets the criteria specified in regulation 7.02 of the Environment Protection and Biodiversity Conservation Regulations 2000, particularly Criterion 2 and Criterion 4, indicating a severe reduction in its geographic distribution and integrity.
The obligations and requirements imposed by this Act on the parties or entities it governs are primarily focused on the protection and conservation of the listed threatened ecological communities. Specifically, the Act mandates that the Minister must establish and maintain a list of threatened ecological communities, which now includes the Brogo Vine Forest of the South East Corner Bioregion. This inclusion obligates the Minister and relevant authorities to take appropriate measures to ensure the protection and recovery of the listed ecological community. These measures may include habitat protection, restoration efforts, and monitoring programs, as well as developing and implementing recovery plans. The Act also places a duty on all persons, including individuals, corporations, and government entities, to comply with any conditions, permits, or plans issued under the Act to safeguard the threatened ecological community.
The Act provides for offences, penalties, and civil/criminal consequences for breach. Under the Environment Protection and Biodiversity Conservation Act 1999, any person who contravenes a condition of a licence, permit, or authority under the Act may be liable for civil penalties, including fines up to a maximum of $1.1 million for a corporation and $110,000 for an individual, as well as criminal penalties. These penalties are intended to deter non-compliance and ensure the enforcement of environmental protection measures. Additionally, the Act includes provisions for the enforcement of compliance and the imposition of penalties by authorised officers, thereby providing a robust framework for the enforcement of the Act's requirements.