Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) aims to protect the environment and conserve biodiversity, including the protection of threatened species. The Act mandates the Minister to establish and maintain a list of threatened species, divided into categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Act empowers the Minister to amend this list through legislative instruments. The List of Threatened Species Amendment (388) Instrument 2023, made under the authority of the Minister for the Environment and Water, seeks to address the gap in the protection of critically endangered species by including Pericryptodrilus nanus in the Critically Endangered category due to threats such as habitat loss, extreme weather, invasive species, predation, and disease. This amendment follows thorough consultation and assessment by the Threatened Species Scientific Committee, ensuring the species meets the requisite criteria for inclusion in the critically endangered category. The instrument, compatible with human rights, was subject to public consultation as required by the Act.

Scope and Application

The List of Threatened Species Amendment (388) Instrument 2023, made under the Environment Protection and Biodiversity Conservation Act 1999, serves to amend the List of Threatened Species by including the species Pericryptodrilus nanus within the Critically Endangered category. This amendment applies to the conservation of biodiversity and protection of the environment in Australia, specifically targeting the species in question due to its critical risk of extinction as a result of various factors such as climate change, invasive species, predation, and disease. The Minister for the Environment and Water, acting under sections 178 and 184(a) of the Act, was satisfied that the requisite criteria were met for the inclusion of this species following a thorough assessment by the Threatened Species Scientific Committee and public consultation. The amendment is applicable nationwide, aligning with the overarching purpose of the Act to conserve biodiversity across Australia. This Instrument commences on the day after its registration and is compatible with human rights as declared under the Human Rights (Parliamentary Scrutiny) Act 2011, ensuring that no human rights are infringed upon by the amendment.

Key Provisions

The main operative sections of the List of Threatened Species Amendment (388) Instrument 2023 pertain to the inclusion of specific species in the list of threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 1 provides the name of the instrument as the List of Threatened Species Amendment (388) Instrument 2023, and section 2 outlines the commencement of the instrument, which is the day after it is registered. Section 3 identifies the authority under which the instrument is made, which is section 184 of the EPBC Act. Section 4 refers to the schedules that amend the principal instrument, which is detailed in Schedule 1 of the instrument. Schedule 1 amends the list under the heading "SPECIES THAT ARE CRITICALLY ENDANGERED" to include Pericryptodrilus nanus in the appropriate position. The obligations and requirements imposed by the Act on parties and entities are primarily centred around the protection and conservation of threatened species. Under section 186(1) of the EPBC 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. Section 179(3) of the Act further specifies that a native species is eligible to be included in the Critically Endangered category if it is facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria. In this case, the Minister was satisfied that the requisite criteria was met for including Pericryptodrilus nanus in the Critically Endangered category in the List, as determined by the Threatened Species Scientific Committee. The Instrument also outlines the process for making amendments to the List to include or transfer an item, as set out in Part 13, Division 1, Subdivision AA of the EPBC Act. This process includes consultation with relevant stakeholders and the public, with a minimum of 30 business days for public comment 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 as part of the assessment process. The Committee assessed Pericryptodrilus nanus as eligible for inclusion in the Critically Endangered category in the List, and the Minister considered this assessment in making the Instrument. The Act imposes civil and criminal consequences for breaches of its provisions, particularly in relation to the protection of threatened species. Section 315 of the EPBC Act sets out the maximum penalties for offences, with fines and imprisonment for individuals and corporations. For example, section 315(1) provides for a maximum penalty of $324,000 for individuals and $1,620,000 for corporations for offences related to the destruction or interference with listed threatened species. Section 315(2) provides for a maximum penalty of $648,000 for individuals and $3,240,000 for corporations for offences related to the trade or transport of listed threatened species. It is important to note that the maximum penalties may be increased in certain circumstances, such as where the offence is committed in a deliberate or reckless manner. In summary, the List of Threatened Species Amendment (388) Instrument 2023 amends the list of threatened species under the EPBC Act to include Pericryptodrilus nanus in the Critically Endangered category. The Act imposes obligations and requirements on parties and entities to protect and conserve threatened species, with civil and criminal consequences for breaches of its provisions. The Instrument was made in accordance with the consultation and assessment processes outlined in the Act, and is compatible with the human rights and freedoms recognised or declared under the Human Rights (Parliamentary Scrutiny) Act 2011.