List of Threatened Species Amendment (342) Instrument 2022

Administered by Department of Climate Change, Energy, the Environment and Water

Legislation au F2022L01316 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

(Issued under the Authority of the Minister for the Environment and Water)

 

Environment Protection and Biodiversity Conservation Act 1999

 

List of Threatened Species Amendment (342) 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 species.

 

Subsection 178(1) of the Act provides that the Minister must, by legislative instrument, establish a list of threatened species (List) separated into the following categories: Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. This list referred to in subsection 178(1) of the Act is contained in the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 (List).

 

Paragraph 184(a) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by including items within the List in accordance with Subdivision AA.

 

Paragraph 184(c) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by transferring items from one category in the list to another category in the list in accordance with Subdivision AA.

 

The species being included in the List met the criteria for listing in the Endangered category under the Environment Protection and Biodiversity Conservation Regulations 2000 (Regulations) (see below).

 

The species being transferred from one category in the List to another category in the List met the criteria for listing in the Critically Endangered category under the Regulations.

 

Purpose of Instrument

 

The purpose of this Instrument is to amend the List by:

 

  • Including the following species in the Endangered category in the List:

 

  • Pomaderris gilmourii var. gilmourii
  • Transferring the following species by deleting the species from the Vulnerable category in the List and including it in the Critically Endangered category in the List:
    • Pomaderris gilmourii var. cana

 

Pomaderris gilmourii var. gilmourii and Pomaderris gilmourii var cana are considered threatened due to inappropriate fire regimes, climate change, invasive species, and disease.

 

Subsection 186(1) of the Act provides that the Minister must not include (whether as a result of a transfer or otherwise) a native species on the List in a particular category unless satisfied that the native species is eligible to be included in that category.

 

Subsection 179(3) of the Act provides that a native species is eligible to be included in the Critically Endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria.

 

Subsection 179(4) of the Act provides that a native species is eligible to be included in the Endangered category at a particular time if, at that time, it is not critically endangered and it is facing a very high risk of extinction in the wild in the near future, as determined in accordance with the prescribed criteria.

 

Regulation 7.01 of the Regulations provides that for section 179 of the Act, a native species is in the critically endangered, endangered, or vulnerable category if it meets any of the five criteria for the category mentioned in the table to that provision.

 

The Minister was satisfied that the requisite criteria was met for including Pomaderris gilmourii var. gilmourii in the Endangered category in the List and transferring Pomaderris gilmourii var. cana by deleting it from the Vulnerable category and including it in the Critically Endangered category in the List.

 

Consultation

 

The process for making amendments to the List to include or transfer an item is set out in Part 13, Division 1, Subdivision AA of the Act. Consultation was undertaken before the Instrument was made, in accordance with the processes outlined in Part 13, Division 1, Subdivision AA of the Act.

 

Notice of the proposed amendment and a consultation document for both species were made available for public comment for a minimum of 30 business days as required by subsection 194M(3) of the Act. Any public comments received that were relevant to the survival of the species were considered by the Threatened Species Scientific Committee (Committee) as part of the assessment process. Due to the nature of this consultation process, it was considered unnecessary to undertake additional consultation following the drafting of this specific instrument.

 

The Committee prepared a written assessment of whether the nominated species were eligible for inclusion in the List. The Committee assessed Pomaderris gilmourii var. gilmourii as eligible for inclusion in the Endangered category in the List and Pomaderris gilmourii var. cana as eligible for transfer from the Vulnerable category to the Critically Endangered category in the List.

 

In making this Instrument, the Minister considered the Committee’s written assessment and any comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the Act.

 

Details / Operation

 

Details of the Instrument are set out in Attachment A.

 

This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.

 

The Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A statement of compatibility is set out in Attachment B.

 

Authority: sections 178, 184(a) and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999.

ATTACHMENT A

 

Details of the List of Threatened Species Amendment (342) Instrument 2022

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (342) Instrument 2022.

 

Section 2 – Commencement

 

This section provides that this instrument commences on the day after it is registered.

 

Section 3 – Authority

 

This section provides that this instrument is made under section 184 of the Environment Protection and Biodiversity Conservation Act 1999.

 

Section 4 – Schedules

 

This section specifies that the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 (the principal instrument) is amended as outlined in Schedule 1 of the instrument.

 

Schedule 1- Amendments

 

Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999

 

Item 1 – SPECIES THAT ARE ENDANGERED

 

Item 1 amends the heading “SPECIES THAT ARE ENDANGERED” under the principal instrument to include in the appropriate position the species Pomaderris gilmourii var. gilmourii.

 

Item 2 – SPECIES THAT ARE VULNERABLE

 

Item 2 amends the heading “SPECIES THAT ARE VULNERABLE” under the principal instrument to omit the species Pomaderris gilmourii var. cana.

 

Item 3 – SPECIES THAT ARE CRITICALLY ENDANGERED

 

Item 3 amends the heading “SPECIES THAT ARE ENDANGERED” under the principal instrument to include in the appropriate position the species Pomaderris gilmourii var. cana.


ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

 

List of Threatened Species Amendment (342) Instrument 2022

 

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 species (List) to:

  • Include Pomaderris gilmourii var. gilmourii in the Endangered category in the List; and
  • Transfer Pomaderris gilmourii var. cana by deleting it from the Vulnerable category in the List and including it in the Critically Endangered category in the List.

 

The species being included in the List met the criteria for listing in the relevant category under the Environment Protection and Biodiversity Conservation Regulations 2000.

 

The species being transferred from one category in the List to another category in the List met the criteria for listing in the relevant category under the Environment Protection and Biodiversity Conservation Regulations 2000.

 

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 Tanya Plibersek MP

Minister for the Environment and Water

 

 

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 species. The Act establishes a framework for the creation and maintenance of a list of threatened species, categorised into Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Pursuant to the authority granted under the Act, the Minister for the Environment and Water has issued the List of Threatened Species Amendment (342) Instrument 2022 to amend the list by including Pomaderris gilmourii var. gilmourii in the Endangered category and transferring Pomaderris gilmourii var. cana from the Vulnerable category to the Critically Endangered category. This amendment responds to the threats faced by these species, including inappropriate fire regimes, climate change, invasive species, and disease. The policy objective of this amendment is to ensure that the list accurately reflects the conservation status of these species, thereby facilitating appropriate protective measures.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is a comprehensive piece of Australian legislation aimed at the protection of the environment and the conservation of biodiversity, particularly focusing on threatened species. Under this Act, the Minister for the Environment and Water has the authority to establish and amend the List of Threatened Species, which categorizes species into different levels of threat including Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The List of Threatened Species Amendment (342) Instrument 2022 amends this list by including Pomaderris gilmourii var. gilmourii in the Endangered category and transferring Pomaderris gilmourii var. cana from the Vulnerable category to the Critically Endangered category. This amendment is made under the authority of sections 178, 184(a), and 184(c) of the Act and is in accordance with the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The decision to amend the list was preceded by a consultation process as required by the Act, and the Threatened Species Scientific Committee assessed the eligibility of the species based on the criteria. This legislative instrument applies nationally and is compatible with human rights as it does not engage any of the applicable rights or freedoms. The instrument comes into effect on the day after registration.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) lists threatened species and provides for their protection and conservation. The List of Threatened Species Amendment (342) Instrument 2022 amends this list by including Pomaderris gilmourii var. gilmourii in the Endangered category and transferring Pomaderris gilmourii var. cana from the Vulnerable category to the Critically Endangered category (Schedule 1, Items 1-3). This amendment is made under the authority granted by sections 178, 184(a), and 184(c) of the EPBC Act. The Act imposes obligations on the Minister to ensure that threatened species are appropriately listed, and it requires that species are only included or transferred to a category if they meet the eligibility criteria set out in the Act and the Environment Protection and Biodiversity Conservation Regulations 2000. Specifically, section 186(1) mandates that a native species must not be included in a category unless the Minister is satisfied that the species meets the eligibility criteria for that category. Subsections 179(3) and 179(4) of the EPBC Act provide the criteria for inclusion in the Critically Endangered and Endangered categories, respectively, including meeting the criteria in Regulation 7.01. The Act also mandates a process of consultation before amendments to the list are made. This includes public notice and the consideration of comments from the Threatened Species Scientific Committee. The Minister is required to consider these consultations when making amendments to the List (subsection 194M(3) of the EPBC Act). Failure to comply with the requirements of the EPBC Act and the Regulations can result in civil or criminal penalties. However, the specific offences, penalties, or consequences for breaches of the Act in relation to threatened species listing are not detailed in this explanatory statement. Generally, under the EPBC Act, offences may include unauthorised actions that harm listed species or their habitats, which can result in significant fines or imprisonment. The maximum penalties for contravening the Act can vary widely depending on the nature and seriousness of the offence, with potential fines ranging from several thousand to millions of Australian dollars, and imprisonment terms that can extend up to several years.

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Threatened Species
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.