List of Threatened Species Amendment (361) Instrument 2023

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

Legislation au F2023L00374 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 (361) 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.

 

Paragraph 184(c) of the Act relevantly provides that the Minister may make legislative instruments amending the list of threatened native species by transferring items from one category in the list to another category in the list, in accordance with the nomination and listing process outlined in the Act.

 

The species being included or transferred in the List met the criteria for listing in the Endangered and Critically Endangered 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:

 

  • Transferring the following species by deleting the species from the Endangered category in the List and including it in the Critically Endangered category in the List:
    • Daviesia pseudaphylla
    • Leucopogon gnaphalioides

 

  • 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:
    • Nematolepis frondosa

 

  • Including the following species in the List:

 

  • Bertya mollissima in the Endangered category.

 

Daviesia pseudaphylla is considered threatened due to disease, habitat loss, disturbance and modification and climate change.

 

Leucopogon gnaphalioides is considered threatened due to disease, habitat loss, disturbance and modifications, invasive and native species and climate change.

 

Nematolepis frondosa is considered threatened by fire regimes that cause declines in biodiversity, human disturbance, exotic invasive species, problematic native species, pathogens and disease.

 

Bertya mollissima is considered threatened due to climate change, habitat disturbance and modification 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 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(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 transferring Daviesia pseudaphylla and Leucopogon gnaphalioides by deleting these from the Endangered category and including them in the Critically Endangered category in the List.

 

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

 

The Minister was satisfied that the requisite criteria was met for including Bertya mollissima in the 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 was made available for public comment for a minimum of 30 business days as required by subsection 194M(3). 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 on whether the nominated species were eligible for inclusion in the List. The Committee assessed Daviesia pseudaphylla and Leucopogon gnaphalioides as eligible for transferring from the Endangered category to the Critically Endangered category. The Committee assessed Nematolepis frondosa as eligible for transferring from the Vulnerable category to the Critically Endangered category. The Committee assessed Bertya mollissima as eligible for inclusion in the 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.

 

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.

 

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) and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999.

 

 


 

ATTACHMENT A

 

Details of the List of Threatened Species Amendment (361) Instrument 2023

 

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (361) 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- Amendment

 

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

 

Item 1 – SPECIES THAT ARE CRITICALLY ENDANGERED

Item 1 amends the list under the heading “SPECIES THAT ARE CRITICALLY ENDANGERED” to include in the appropriate position each of the following species:

 

  • Daviesia pseudaphylla
  • Leucopogon gnaphalioides
  • Nematolepis frondosa

 

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:

  • Bertya mollissima  

 

Item 3 – SPECIES THAT ARE ENDANGERED

Item 3 amends the list under the heading “SPECIES THAT ARE ENDANGERED” to omit the following species:

  • Daviesia pseudaphylla
  • Leucopogon gnaphalioides

 

Item 4 – SPECIES THAT ARE VULNERABLE

Item 4 amends the list under the heading “SPECIES THAT ARE VULNERABLE” to omit the species Nematolepis frondosa.


 

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 (361) 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:

  • Transfer Daviesia pseudaphylla by deleting it from the Endangered category in the List and including it in the Critically Endangered category in the List.
  • Transfer Leucopogon gnaphalioides by deleting it from the Endangered category in the List and including it in the Critically Endangered category in the List.
  • Transfer Nematolepis frondosa by deleting it from the Vulnerable category in the List and including it in the Critically Endangered category in the List.
  • Include Bertya mollissima in the Endangered category.

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.

 

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 List of Threatened Species Amendment (361) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to adjust the classifications of several native species within the list of threatened species. Enacted by the Parliament of Australia, this Instrument addresses the need to update the conservation status of species based on current scientific assessments. The primary objective is to ensure that species are correctly categorised to reflect their current risk of extinction, thereby facilitating targeted conservation efforts. This Instrument transfers three species from lower risk categories to higher risk categories due to increased threats such as habitat loss, invasive species, and climate change. Additionally, it includes a new species in the Endangered category based on similar threats. The amendments were made following consultations with relevant scientific committees and public consultation periods, ensuring that the changes are grounded in the latest scientific data.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a Commonwealth Act that applies to all individuals, entities, and industries within Australia. It aims to protect the environment and conserve biodiversity, including the protection and conservation of threatened species. This Act applies to the listing and categorisation of threatened species, which includes determining the eligibility of species to be listed and the criteria for listing them in categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The List of Threatened Species Amendment (361) Instrument 2023 amends the EPBC Act by transferring certain species from their existing categories to higher risk categories, such as moving Daviesia pseudaphylla and Leucopogon gnaphalioides from the Endangered category to the Critically Endangered category, and by including new species in the Endangered category, such as Bertya mollissima. This legislative instrument also transfers Nematolepis frondosa from the Vulnerable category to the Critically Endangered category. The changes are made based on the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000, and the decision-making process involved consultation with the Threatened Species Scientific Committee and the public. The Minister for the Environment and Water is required to be satisfied that the species meet the eligibility criteria for their new categories. The Instrument commences on the day after it is registered and is compatible with human rights as it does not raise any human rights issues.

Key Provisions

The List of Threatened Species Amendment (361) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 (the Act) by modifying the list of threatened species (section 3). Specifically, it transfers three species from lower threat categories to the Critically Endangered category and includes one species in the Endangered category. This means that Daviesia pseudaphylla and Leucopogon gnaphalioides are moved from the Endangered category to the Critically Endangered category (Schedule 1, Item 1 and Item 3), Nematolepis frondosa is moved from the Vulnerable category to the Critically Endangered category (Schedule 1, Item 2), and Bertya mollissima is included in the Endangered category (Schedule 1, Item 2). These changes reflect the high risk of extinction these species face due to various threats, including habitat loss, climate change, and invasive species. The Act imposes several obligations on the Minister for the Environment and Water, who is responsible for maintaining and updating the list of threatened species. Under sections 178 and 179 of the Act, the Minister must ensure that a species is eligible for inclusion in a particular category based on specific criteria. For example, a species is eligible for the Critically Endangered category if it faces an extremely high risk of extinction in the wild in the immediate future. The Minister must also consider public consultation and expert assessments, such as those from the Threatened Species Scientific Committee, when making decisions about listing and transferring species. The Minister's satisfaction that the requisite criteria are met for the transfers and inclusion of the species is detailed in the explanatory statement, ensuring transparency and accountability in the decision-making process. Breaching the provisions of the Environment Protection and Biodiversity Conservation Act 1999 can result in significant consequences. While the Act itself does not specify particular offences, penalties, or consequences for breaches related to the listing of threatened species, broader environmental laws provide for penalties. For instance, under the Act, unauthorised actions that harm listed species or their habitats can lead to criminal charges, with maximum penalties including substantial fines and imprisonment. Civil penalties can also be imposed for non-compliance, and courts can issue injunctions or other remedies to enforce compliance with environmental protection laws. Additionally, the Act allows for the imposition of administrative penalties for breaches, which can include fines up to a certain amount determined by the regulations. These legal frameworks aim to deter and penalise actions that threaten biodiversity and endangered 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.