EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment (Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (350)) Instrument 2023
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.
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.
The species being included in the Vulnerable category under the Environment Protection and Biodiversity Conservation Regulations 2000 (Regulations).
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Including Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) in the Vulnerable category in the List.
This species is considered threatened due to habitat loss and degradation, fire and invasive species.
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(5) of the Act provides that a native species is eligible to be included in the Vulnerable category at a particular time if, at that time, it is not critically endangered or endangered and it is facing a high risk of extinction in the wild in the medium-term 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 Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) in the Vulnerable 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 was 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.
The Committee prepared a written assessment of whether the nominated species was eligible for inclusion in the List. The Committee assessed Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) as eligible for inclusion in the Vulnerable category in the List.
In making this Instrument, the Minister considered the Committee’s written assessment and the comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the Act.
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.
Authority: sections 178 and 184(a) 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 Species Amendment
(Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367)
(Northern Territory population) (350)) Instrument 2023 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 to: - Include Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) in the Vulnerable category in the List.
The species being included in the List met the criteria for listing in the relevant category under the EPBC Regulations. 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 conservation of biodiversity, including the protection and conservation of threatened species. The Act mandates the Minister for the Environment to establish and maintain a list of threatened species, categorised into six levels of risk, including Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. This legislative framework aims to safeguard Australia's biodiversity by identifying species at risk and implementing necessary conservation measures. The policy objective is to ensure the survival of threatened species through appropriate legislative action and community involvement. The List of Threatened Species Amendment (Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (350)) Instrument 2023 was introduced to address the specific threat to the Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) within the Northern Territory, listing it as Vulnerable due to habitat loss and degradation, fire, and invasive species. The Minister for the Environment and Water issued this legislative instrument after considering the assessment by the Threatened Species Scientific Committee and public consultation, ensuring that the criteria for listing the species in the Vulnerable category were met.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) establishes a framework for the protection and conservation of the environment and biodiversity, including the listing and management of threatened species. The Act applies to the Commonwealth, providing a national approach to environmental protection and biodiversity conservation. Under the EPBC Act, the Minister for the Environment is responsible for maintaining a list of threatened species, categorising them according to their conservation status. The List of Threatened Species Amendment (Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) (350)) Instrument 2023 amends the EPBC Act by including a specific species, Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367), native to the Northern Territory, in the Vulnerable category on the List. This inclusion is due to the species facing a high risk of extinction in the medium-term future as a result of habitat loss, degradation, fire, and invasive species. The Minister's decision to amend the List was made after considering the assessment of the Threatened Species Scientific Committee and public consultation, as mandated by the Act. The amendment does not introduce any exclusions, exemptions, or thresholds beyond those already provided for in the EPBC Act and its Regulations. The Instrument is a legislative instrument under the Legislation Act 2003 and will come into effect the day after its registration.
Key Provisions
The main sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to this legislative instrument are sections 178 and 186, which pertain to the listing of threatened species, and section 184, which concerns the amendment of the List. Section 178 mandates the Minister to establish a list of threatened species, categorising them into Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(a) allows the Minister to amend the List by including items in accordance with Subdivision AA, while section 186(1) stipulates that a native species cannot be included in a particular category unless the Minister is satisfied that the species meets the eligibility criteria for that category. In this case, the Minister has amended the List to include Erythroxylum sp. Cholmondely Creek (J.R.Clarkson 9367) (Northern Territory population) in the Vulnerable category based on the assessment that it faces a high risk of extinction in the medium-term future due to habitat loss and degradation, fire, and invasive species.
The Act imposes several obligations on the parties and entities it governs. For instance, under section 178, the Minister must ensure that the List is established and maintained, reflecting the current status of threatened species. Under section 186, the Minister must only include a species in a particular category if satisfied that the species meets the eligibility criteria. This involves assessing the species against the criteria set out in Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000. Additionally, the Act requires the Minister to consult with relevant stakeholders, including the Threatened Species Scientific Committee, and to provide a minimum of 30 business days for public comment on proposed amendments, as outlined in subsection 194M(3). The Minister must consider all relevant public comments and the Committee's assessment in making the decision to amend the List.
The EPBC Act imposes penalties for breaches related to threatened species. For example, under section 329, any person who contravenes the Act or the Regulations may be liable for civil penalty offences, which can result in fines up to the maximum penalties specified in the Act. Specifically, for offences involving threatened species, the maximum penalty can be up to $222,000 for individuals and up to $1,110,000 for bodies corporate, as per section 528. Criminal penalties are also applicable, with section 530 detailing offences involving the killing or harming of listed threatened species, which can lead to imprisonment for up to five years, fines, or both. These provisions underscore the seriousness with which the Act treats the protection and conservation of threatened species and the consequences of non-compliance.