List of Threatened Species Amendment (364) Instrument 2023

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

Legislation au F2023L01192 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 (364) 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(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/or transferred in the List met the criteria for listing in the 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:

 

  • Including the following species in the List:
    • Thelymitra orientalis in the Critically Endangered category.

 

  • Transferring the following species by deleting the species from the Endangered category in the List and including them in the Critically Endangered category in the List:
    • Lambertia fairallii
    • Persoonia micranthera

 

Thelymitra orientalis is considered threatened due to invasive species, climate change, habitat loss, disturbance and modifications, overabundant native species browsing, grazing and disease.

 

Lambertia fairallii is considered threatened due to disease, climate change, fragmentation and grazing (seed predation).

 

Persoonia micranthera is considered threatened due to disease, habitat loss, disturbance and modifications, fire regimes that cause declines in biodiversity, climate change, 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(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.

 

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 Thelymitra orientalis in the Critically Endangered category in the List.

 

The Minister was satisfied that the requisite criteria was met for transferring Lambertia fairallii and Persoonia micranthera by deleting them from the Endangered category and including them 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 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 Thelymitra orientalis as eligible for inclusion in the Critically Endangered category in the List. The Committee assessed Lambertia fairallii and Persoonia micranthera as eligible for transferring from the Endangered category and including them in 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: 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 (364) Instrument 2023

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (364) 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 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:

 

  • Lambertia fairallii
  • Persoonia micranthera
  • Thelymitra orientalis

 

 

Item 2 – SPECIES THAT ARE ENDANGERED

 

Item 2 amends the list under the heading “SPECIES THAT ARE ENDANGERED” to omit from the appropriate position the species:

 

  • Lambertia fairallii
  • Persoonia micranthera


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 (364) 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 Thelymitra orientalis in the Critically Endangered category.

 

  • Transfer Lambertia fairallii by deleting it from the Endangered category in the List and including it in the Critically Endangered category in the List.

 

  • Transfer Persoonia micranthera by deleting it from the Endangered category in the List and including it in 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.

 

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. This Act allows the Minister for the Environment and Water to amend the list of threatened species by legislative instrument, ensuring that species facing significant threats are appropriately categorised and managed. The List of Threatened Species Amendment (364) Instrument 2023 was introduced to address the need for updating the conservation status of certain species. This legislative instrument was made under the authority of the Minister and includes the species Thelymitra orientalis in the Critically Endangered category, and transfers Lambertia fairallii and Persoonia micranthera from the Endangered category to the Critically Endangered category. The amendment was made following an assessment by the Threatened Species Scientific Committee and public consultation, ensuring the changes are in line with the prescribed criteria and the policy objective of protecting vulnerable species.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (Act) applies to the protection of the environment and biodiversity conservation, including the protection and conservation of threatened species. This Act empowers the Minister to establish and amend the list of threatened species, categorising them into Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Act applies nationally across Australia, impacting various entities such as individuals, corporations, and government bodies that may engage in activities affecting listed species. The List of Threatened Species Amendment (364) Instrument 2023 amends the List by including Thelymitra orientalis in the Critically Endangered category and transferring Lambertia fairallii and Persoonia micranthera from the Endangered to the Critically Endangered category. These changes reflect the severe threats faced by these species, including invasive species, climate change, habitat loss, and disease. The Instrument follows a thorough consultation process mandated by the Act and considers assessments by the Threatened Species Scientific Committee. The amendments are compatible with human rights as they do not engage any of the applicable rights or freedoms.

Key Provisions

This legislative instrument amends the list of threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Act) by adding and transferring certain species. Specifically, Section 1 of the instrument names it as the List of Threatened Species Amendment (364) Instrument 2023. Section 2 provides that the instrument commences the day after it is registered. Section 3 specifies that the instrument is made under section 184 of the Act. Section 4, along with Schedule 1, amends the Declaration under sections 178, 181, and 183 of the Act by adding Thelymitra orientalis to the list of species in the Critically Endangered category and transferring Lambertia fairallii and Persoonia micranthera from the Endangered category to the Critically Endangered category. Under the Act, the Minister must be satisfied that the species meet the criteria for inclusion in the relevant category before they can be added to the list. The Minister must also not include a native species on the list unless satisfied that the species is eligible to be included in that category (subsection 186(1) of the Act). The species in question met these criteria, and the Minister was satisfied that the requisite criteria were met for inclusion in the Critically Endangered category. The 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 2001, as outlined in Attachment B. The Act imposes several obligations on the parties and entities it governs. These include the requirement to protect and conserve threatened species and to ensure that activities do not harm these species or their habitats. The Act also requires the Minister to maintain a list of threatened species and to update this list as necessary. The Act provides for the protection of threatened species through various mechanisms, including the prohibition of activities that harm threatened species or their habitats, and the requirement to obtain permits for activities that may harm threatened species. There are no specific offences, penalties, or consequences outlined in the instrument itself. However, the Act provides for a range of offences and penalties for breaches of its provisions, including fines and imprisonment. For example, subsection 216(1) of the Act provides that a person who contravenes a prohibition or requirement under the Act is guilty of an offence and liable to a fine of up to $222,200 for a corporation and $44,400 for an individual, or imprisonment for up to two years, or both. Subsection 216(4) of the Act provides that a person who engages in an activity that is likely to harm a threatened species or its habitat is guilty of an offence and liable to a fine of up to $666,600 for a corporation and $133,320 for an individual, or imprisonment for up to five years, or both. The Act also provides for civil penalties for breaches of its provisions, including damages for harm caused to threatened species or their habitats.

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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.