List of Threatened Species Amendment (356) Instrument 2023

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

Legislation au F2023L00373 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 (356) 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 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(b) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by deleting 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 and transferred in the List met the criteria for listing in the Vulnerable and Endangered category under the Environment Protection and Biodiversity Conservation Regulations 2000 (Regulations).

 

The species being deleted from the List did not meet the criteria for listing in any category under the Regulations.

 

Purpose of Instrument

 

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

 

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

 

  • Transferring the following species by deleting the species from the Vulnerable category in the List and including it in the Endangered category in the List:
    • Erythrotriorchis radiatus
    • Turnix varius scintillans

 

  • Deleting the following species from the List:
    • Pterodroma arminjoniana from the Critically Endangered category

 

Lophochroa leadbeateri leadbeateri is considered threatened due to habitat loss and degradation, fire regimes that cause declines in biodiversity, shortage and competition for nest hollows, climate change, anthropogenic threats and disease.

 

Erythrotriorchis radiatus, is considered threatened due to habitat loss, disturbance and modification, fire regimes that cause decline in biodiversity, climate change, pesticide poisoning and disease.

 

Turnix varius scintillans is considered threatened due to predation and competition from introduced fauna, habitat modification and degradation, fire regimes that cause declines in biodiversity, land use and development, and climate change and severe weather impacts.

 

Pterodroma arminjoniana does not breed within the Australian jurisdiction and is considered a vagrant, and therefore does not meet the criteria for listing under Regulation 7.01

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 186(2B) of the Act provides that in deciding whether to delete a native species from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to whether the native species is eligible to be included in that category or the effect that the inclusion of the native species in that category is having, or could have, on the survival of the species.

 

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 Lophochroa leadbeateri leadbeateri in the Endangered category in the List.

 

The Minister was satisfied that the requisite criteria was met for transferring Erythrotriorchis radiatus and Turnix varius scintillans by deleting them from the Vulnerable category and including them in the Critically Endangered category in the List.

 

The Minister was satisfied that Pterodroma arminjoniana did not meet the requisite criteria for inclusion in any 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 each of the 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. Given the extensive consultation undertaken on the proposed listing contained in the legislative instrument, it was not necessary to consult on the text of the instrument itself.

 

The Committee prepared a written assessment on whether the nominated species were eligible for inclusion in the List. The Committee assessed Lophochroa leadbeateri leadbeateri as eligible for inclusion in the Endangered category in the List. The Committee assessed Erythrotriorchis radiatus and Turnix varius scintillans as eligible for transferring from the Vulnerable category and including them in the Endangered category in the List. The Committee assessed Pterodroma arminjoniana as ineligible for inclusion in any 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: paragraphs 184(a), 184(b) and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999.


 

ATTACHMENT A

 

Details of the List of Threatened Species Amendment (356) Instrument 2023

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (356) Instrument 2023.

 

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 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 VULNERABLE

Item 1 amends the list under the heading “SPECIES THAT ARE VULNERABLE” to omit from the appropriate position each of the following species:

 

  • Erythrotriorchis radiatus
  • Turnix varius scintillans

 

Item 2 – SPECIES THAT ARE ENDANGERED

Item 2 amends the list under the heading “SPECIES THAT ARE ENDANGERED” to include in the appropriate position each of the following species:

 

  • Erythrotriorchis radiatus
  • Lophochroa leadbeateri leadbeateri
  • Turnix varius scintillans

 

Item 3 – SPECIES THAT ARE CRITICALLY ENDANGERED

 

Item 3 amends the list under the heading “SPECIES THAT ARE CRITICALLY ENDANGERED” to omit from the appropriate position the species:

 

  • Pterodroma arminjoniana

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 (356) 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 (List) to:

  • Include Lophochroa leadbeateri leadbeateri in the Endangered category.

 

  • Transfer Erythrotriorchis radiatus by deleting it from the Vulnerable category in the List and including it in the Endangered category in the List.

 

  • Transfer Turnix varius scintillans by deleting it from the Vulnerable category in the List and including it in the Endangered category in the List.

 

  • Delete Pterodroma arminjoniana from the Critically Endangered category in the List.

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

The species being removed from the List did not meet the criteria for listing in any relevant categories under the 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 allows the Minister to establish a list of threatened species and amend this list through legislative instruments. The List of Threatened Species Amendment (356) Instrument 2023 was introduced to address the need for updating the list of threatened species, ensuring accurate representation of species' conservation statuses and facilitating appropriate protection measures. The Instrument was made under the authority of the Minister for the Environment and Water and aims to align the list with the most current scientific data and criteria, ensuring that conservation efforts are effectively targeted. This amendment involves the inclusion of Lophochroa leadbeateri leadbeateri in the Endangered category due to threats such as habitat loss and climate change, the transfer of Erythrotriorchis radiatus and Turnix varius scintillans from the Vulnerable to the Endangered category owing to increased threats, and the removal of Pterodroma arminjoniana from the Critically Endangered category as it no longer meets the listing criteria. The amendment process included extensive consultation with relevant stakeholders and scientific committees to ensure that decisions were based on comprehensive assessments and public feedback.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. Under this Act, the Minister for the Environment and Water has the authority to amend the list of threatened species by legislative instrument. The List of Threatened Species Amendment (356) Instrument 2023 amends the List by including the species Lophochroa leadbeateri leadbeateri in the Endangered category, transferring the species Erythrotriorchis radiatus and Turnix varius scintillans from the Vulnerable category to the Endangered category, and removing the species Pterodroma arminjoniana from the Critically Endangered category. These changes are based on assessments by the Threatened Species Scientific Committee, which considered the species' eligibility against the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The Instrument applies across the Commonwealth of Australia and is compatible with human rights as it does not raise any human rights issues. The changes made by this Instrument are effective from the day after it is registered.

Key Provisions

The List of Threatened Species Amendment (356) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 list of threatened species by including Lophochroa leadbeateri leadbeateri in the Endangered category, and transferring Erythrotriorchis radiatus and Turnix varius scintillans from the Vulnerable category to the Endangered category (sections 178(1), 184(a) and (c)). The Instrument also removes Pterodroma arminjoniana from the Critically Endangered category (sections 178(1) and 184(b)). The Minister made these amendments based on the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000, which the species met for inclusion in their respective categories. The Act imposes certain obligations on the Minister, including the requirement to consult with relevant stakeholders, particularly the Threatened Species Scientific Committee, when considering amendments to the List. The Minister must ensure that any decision to include or transfer a species is based on the best available scientific information and that the decision is in the interest of the species' survival. The Minister must also ensure that any decision to delete a species from the List is based on the species no longer meeting the criteria for listing. Failure to comply with the requirements of the Act may result in civil or criminal penalties. For example, under section 515 of the Act, a person who contravenes a direction given under the Act may be liable to a penalty of up to $222,200 for an individual and $1,111,000 for a body corporate. Additionally, under section 518 of the Act, a person who intentionally, recklessly or negligently takes, injures, kills, trades in, transports or deals with a listed threatened species may be liable to a penalty of up to $333,300 for an individual and $1,666,500 for a body corporate. The maximum penalties may be higher for subsequent offences. The Instrument also imposes obligations on parties and entities that may be affected by the amendments. For example, parties and entities that engage in activities that may impact the survival of the species listed in the Instrument must take reasonable steps to avoid or minimise harm to the species. Failure to comply with these obligations may result in civil or criminal penalties. The Act provides for a range of enforcement mechanisms, including the power to issue infringement notices, commence proceedings in a magistrates' court, or commence proceedings in a higher court. The penalties for contravening the Act may include fines, imprisonment, or both. In summary, the List of Threatened Species Amendment (356) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 list of threatened species by including and transferring certain species into different categories based on the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The Act imposes certain obligations on the Minister and on parties and entities that may be affected by the amendments. Failure to comply with the requirements of the Act may result in civil or criminal penalties, including fines and imprisonment.

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