List of Threatened Species Amendment (380) Instrument 2023

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

Legislation au F2023L01492 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 (380) 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 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:

 

  • Including the following species:

 

  • Hibbertia wheelerae in the Critically Endangered category.
  • Prasophyllum uvidulum in the Critically Endangered category.
  • Acacia baueri subsp. aspera in the Endangered category.

 

Hibbertia wheelerae is considered threatened due to disease, habitat loss, disturbance and modification, fire, climate change and invasive species.

 

Prasophyllum uvidulum is considered threatened due to invasive species, climate change, fire, and human disturbance.

 

Acacia baueri subsp. aspera is considered threatened due to habitat loss and disturbance, invasive species, disease, and climate change.

 

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 Hibbertia wheelerae and Prasophyllum uvidulum in the Critically Endangered category in the List. The Minister was satisfied that the requisite criteria was met for including Acacia baueri subsp. aspera 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 Hibbertia wheelerae and Prasophyllum uvidulum as eligible for inclusion in the Critically Endangered category in the List. The Committee assessed Acacia baueri subsp. aspera 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 (380) Instrument 2023

 

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (380) 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 each of the following species:

 

(a)                    Hibbertia wheelerae

(b)                   Prasophyllum uvidulum

 

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)                    Acacia baueri subsp. aspera

 


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 (380) 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 Hibbertia wheelerae in the Critically Endangered category.
  • Include Prasophyllum uvidulum in the Critically Endangered category.
  • Include Acacia baueri subsp. aspera 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 (EPBC Act) was enacted to safeguard the environment and conserve biodiversity, including protecting and conserving threatened species. The Act mandates the Minister to maintain a list of threatened species, categorising them as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, or Conservation Dependent. Pursuant to the Act, the List of Threatened Species Amendment (380) Instrument 2023 was introduced to amend the list by adding specific species to the Critically Endangered and Endangered categories. This amendment was necessitated by threats such as habitat loss, invasive species, and climate change, which place these species at significant risk of extinction. The Minister for the Environment and Water, following extensive consultation and assessment by the Threatened Species Scientific Committee, was satisfied that the requisite criteria were met for including the specified species in the appropriate categories. The Instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms as recognised in the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. The Act mandates the Minister to establish and amend the list of threatened species, which includes categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. This legislative instrument amends the List by including Hibbertia wheelerae and Prasophyllum uvidulum in the Critically Endangered category, and Acacia baueri subsp. aspera in the Endangered category. The Act's jurisdiction covers the entire Commonwealth of Australia, and its provisions extend to all native species within Australia's territory. The Act allows for the inclusion of species on the List based on specific criteria outlined in the Environment Protection and Biodiversity Conservation Regulations 2000. The instrument was developed following a consultation process that included public comment and assessment by the Threatened Species Scientific Committee. This legislative instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Key Provisions

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) lists various categories of threatened species, including Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The List of Threatened Species Amendment (380) Instrument 2023 amends this list by adding three specific species to the Critically Endangered and Endangered categories (s2). This amendment includes Hibbertia wheelerae and Prasophyllum uvidulum in the Critically Endangered category and Acacia baueri subsp. aspera in the Endangered category. The addition of these species was based on their eligibility as determined by the Threatened Species Scientific Committee, following the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The obligations imposed by the Act on parties and entities include ensuring that any activities that may affect listed threatened species are managed in a way that prevents any decline in their populations or habitats. For example, under s186(1) of the Act, the Minister must not include a native species on the List in a particular category unless satisfied that the native species is eligible to be included in that category, as determined in accordance with the prescribed criteria. The Act also mandates consultation with relevant stakeholders and the public, as outlined in Part 13, Division 1, Subdivision AA, to ensure that the inclusion of species on the List is based on comprehensive assessments and public input. Additionally, under s179(3) and (4), a native species is eligible to be included in the Critically Endangered or Endangered category if it meets the specified criteria. The Act also sets out consequences for breaches related to threatened species. Under s215, unauthorised actions that result in harm to a listed threatened species, its habitat, or an ecological community are subject to civil and criminal penalties. For civil penalties, the maximum fines can be substantial, with specific amounts outlined in the EPBC Act or relevant state or territory legislation. Criminal penalties can include imprisonment, reflecting the seriousness of actions that threaten the survival of endangered species. The severity of the penalties is intended to deter actions that could lead to the extinction of species listed under the Act. In conclusion, the List of Threatened Species Amendment (380) Instrument 2023, made under the EPBC Act, introduces stringent measures to protect and conserve three vulnerable species by listing them as Critically Endangered or Endangered. It imposes obligations on parties to ensure activities do not harm these species, mandates public consultation, and outlines significant civil and criminal penalties for non-compliance, thereby reinforcing the Act's commitment to biodiversity conservation.

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