List of Threatened Species Amendment (371) Instrument 2023

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

Legislation au F2023L00954 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 (371) 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.

 

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

 

  • Amytornis striatus striatus in the Critically Endangered category.
  • Amytornis striatus howei in the Endangered category.

 

Amytornis striatus striatus is considered threatened due to small population size effects, fire, fragmented habitat, climate change, habitat degradation and modification, and invasive species.

 

Amytornis striatus howei is considered threatened due to climate change, habitat degradation 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 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 Amytornis striatus striatus in the Critically Endangered category in the List and including Amytornis striatus howei 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) 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 Amytornis striatus striatus as eligible for inclusion in the Critically Endangered category in the List. The Committee assessed Amytornis striatus howei 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: Sections 178 and 184(a) of the Environment Protection and Biodiversity Conservation Act 1999.

ATTACHMENT A

 

Details of the List of Threatened Species Amendment (371) Instrument 2023

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (371) 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 (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 CRITICALLY ENDANGERED

 

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

 

(a)                    Amytornis striatus striatus

 

Item 2 – SPECIES THAT ARE ENDANGERED

 

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

 

(a)                    Amytornis striatus howei

 


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 (371) 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 Amytornis striatus striatus in the Critically Endangered category.
  • Include Amytornis striatus howei in the Endangered category.

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.

 

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 (the Act) provides a framework for the protection of the environment and biodiversity, including the conservation of threatened species. Pursuant to the authority granted under the Act, the Minister for the Environment and Water has issued the List of Threatened Species Amendment (371) Instrument 2023 to amend the list of threatened species by including Amytornis striatus striatus in the Critically Endangered category and Amytornis striatus howei in the Endangered category. The decision to amend the list follows a thorough assessment by the Threatened Species Scientific Committee, which determined that these species meet the criteria for their respective categories based on threats such as habitat degradation, climate change, and invasive species. Public consultation was conducted in line with the Act, and any relevant comments were considered during the assessment process. This legislative instrument is designed to enhance the protection of these species, ensuring their survival and conservation in accordance with the objectives of the Act.

Scope and Application

The List of Threatened Species Amendment (371) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to update the List of Threatened Species by adding Amytornis striatus striatus in the Critically Endangered category and Amytornis striatus howei in the Endangered category. This Instrument applies to these specific species, thereby extending the protections afforded to them under the EPBC Act. The Instrument is applicable nationally across Australia, as it is an amendment to a Commonwealth Act, thereby having jurisdiction throughout all states and territories of Australia. This legislative instrument does not exclude or exempt any particular conduct or entities from its application; instead, it specifically targets the inclusion of these species into the legislative framework for enhanced conservation measures. The criteria for listing are derived from the EPBC Act and the Environment Protection and Biodiversity Conservation Regulations 2000, which provide detailed guidelines for determining eligibility based on specified threats and risk assessments. The instrument does not specify any subordinate instruments that might further extend or restrict its application.

Key Provisions

The primary sections of the List of Threatened Species Amendment (371) Instrument 2023, which amends the Environment Protection and Biodiversity Conservation Act 1999, are primarily concerned with updating the list of threatened species. Specifically, Section 1 of the Instrument provides the name and Section 2 outlines the commencement date, which is the day after registration. Section 3 specifies the authority under which the instrument is made, referring to Section 184 of the Act, while Section 4 identifies the amendments to the principal instrument. Schedule 1 details the specific changes to the List of Threatened Species, including the addition of Amytornis striatus striatus to the Critically Endangered category and Amytornis striatus howei to the Endangered category. The Act imposes several obligations on the Minister for the Environment and Water, as well as the Threatened Species Scientific Committee. Firstly, the Minister must ensure that any inclusion of a native species on the List is based on a thorough assessment that the species meets the eligibility criteria for the specified category. The criteria are outlined in Section 179 of the Act and Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000. For instance, a species can be included in the Critically Endangered category if it faces an extremely high risk of extinction in the wild in the immediate future, as determined by these criteria. The Threatened Species Scientific Committee is tasked with preparing a written assessment to determine the eligibility of nominated species, as highlighted in the consultation process described in Part 13, Division 1, Subdivision AA of the Act. In terms of consequences for breach, the Act does not explicitly state penalties for non-compliance with the listing requirements. However, the Act does provide for potential offences under Section 186, which prohibits the Minister from including a native species on the List unless the requisite criteria are met. Additionally, any actions that adversely affect a listed threatened species could lead to civil or criminal penalties under the Act, as outlined in Section 474 and Section 507 respectively. These provisions include significant fines and imprisonment for individuals and corporations found in breach of the Act's requirements. Given the detailed legislative framework and the importance of biodiversity conservation, compliance with these provisions is critical. Failure to adhere to the criteria for listing species could result in legal action, with potential penalties including substantial fines and imprisonment. The legislative instrument's compatibility with human rights, as stated in Attachment B, ensures that the amendments do not infringe on any rights or freedoms recognised under the Human Rights (Parliamentary Scrutiny) Act 2011.

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