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 (EC78) 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(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 critically endangered category: Tasmanian white gum (Eucalyptus viminalis) wet forest 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 Tasmanian white gum (Eucalyptus viminalis) wet forest 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 3 as critically endangered because of a very severe decline in a species that plays a major role in community structure and processes, such that restoration is unlikely to be possible in the immediate future;
- Criterion 4 as endangered because it has undergone a severe reduction in integrity across most of its geographic distribution, as indicated by a severe degradation of the community or its habitat;
- Criterion 5 as critically endangered because it has undergone a very severe rate of detrimental change as indicated by a very severe continuing decline in its geographic distribution.
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 of threatened ecological communities under the Act to include the ecological community was undertaken before the legislative instrument was made in accordance with the processes 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 31 July 2020 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) was enacted to provide for the protection of the environment and the conservation of biodiversity, including the protection and conservation of threatened ecological communities. The EPBC Act establishes a framework for the listing and protection of these communities, enabling the Minister to include ecological communities in a list of threatened ecological communities based on specific criteria. This legislative instrument, the List of Threatened Ecological Communities Amendment (EC78) Instrument 2021, amends the EPBC Act by including the Tasmanian white gum (Eucalyptus viminalis) wet forest in the critically endangered category of the list, following the recommendation of the Threatened Species Scientific Committee. This amendment was made pursuant to section 184(a) of the EPBC Act, which allows the Minister to modify the list of threatened ecological communities by legislative instrument. The purpose of this amendment is to better protect this ecological community by recognising its critically endangered status and the urgent need for conservation efforts.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to all matters that may impact the environment or biodiversity in Australia. This Act mandates the creation of a list of threatened ecological communities, which is amended by the Minister for the Environment as recommended by the Threatened Species Scientific Committee. The Tasmanian white gum (Eucalyptus viminalis) wet forest has been added to the critically endangered category of this list based on its severe decline in geographic distribution, restricted geographic distribution, significant decline in species that are integral to the community's structure, severe reduction in integrity, and very severe rate of detrimental change. This amendment applies nationally across all jurisdictions in Australia and is not subject to state or territory legislation. The Act's subordinate instruments may further extend or restrict its application, but the primary focus remains on the protection and conservation of biodiversity, particularly threatened ecological communities.
Key Provisions
The key operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) under the List of Threatened Ecological Communities Amendment (EC78) Instrument 2021 include sections 181 and 184(a). Section 181 requires the Minister to establish a list of threatened ecological communities, categorising them as Critically endangered, Endangered, or Vulnerable. Section 184(a) allows the Minister to amend the list by adding items to it through a legislative instrument, in this case, the amendment instrument EC78. The purpose of this amendment is to add Tasmanian white gum (Eucalyptus viminalis) wet forest to the critically endangered category based on recommendations from the Threatened Species Scientific Committee, considering its eligibility under subsection 182(1) of the Act.
The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, the Minister must ensure that the list of threatened ecological communities is kept up-to-date and accurately reflects the status of various ecological communities. This involves considering scientific assessments and advice from the Threatened Species Scientific Committee, as well as the potential impacts of listing on the survival of the communities. Secondly, the Act requires that any amendments to the list be made through a legislative instrument, subject to consultation and public exhibition processes outlined in Part 13, Division 1, Subdivision AA of the Act. This ensures transparency and allows for public and expert input into the listing decisions.
The Act also outlines offences, penalties, and consequences for breaches. While the primary focus of the Act is on conservation and protection, any actions that significantly harm listed threatened ecological communities can lead to civil and criminal penalties. Under the EPBC Act, unauthorised actions that result in the destruction or adverse modification of listed threatened species or ecological communities can be subject to significant fines and, in some cases, imprisonment. The maximum penalties vary depending on the severity of the offence, but they can include substantial fines for corporations and individuals alike, reflecting the importance of biodiversity conservation in Australia.
In summary, the main operative sections of the EPBC Act under the EC78 Instrument establish and amend the list of threatened ecological communities, with a specific focus on adding Tasmanian white gum wet forest to the critically endangered category. The Act imposes obligations on the Minister to maintain and update the list, ensuring it reflects the latest scientific advice and potential impacts on ecological communities. Breaches of the Act can result in significant civil and criminal penalties, underscoring the importance of compliance with biodiversity conservation laws.