List of Threatened Species Amendment (393) Instrument 2023

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

Legislation au F2023L01720 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 (393) 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/or 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:

 

  • Cairnsichthys bitaeniatus in the Critically Endangered category.
  • Galaxias sp. nov. ‘Moroka’ in the Critically Endangered category.
  • Cairnsichthys rhombosomoides in the Endangered category.

 

Cairnsichthys bitaeniatus is considered threatened due to habitat loss, disturbance and modification, climate change and severe weather, fire regimes that causes declines in biodiversity, exotic invasive species, problematic native species, pathogens and disease.

 

Galaxias sp. nov. ‘Moroka’ is considered threatened due to exotic invasive species, problematic native species, pathogens and disease, fire regimes that causes declines in biodiversity, and climate change and severe weather.

 

Cairnsichthys rhombosomoides is considered threatened due to habitat loss, disturbance and modification, climate change and severe weather, fire regimes that causes declines in biodiversity, exotic invasive species, problematic native species, pathogens and disease.

 

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 Cairnsichthys bitaeniatus and Galaxias sp. nov. ‘Moroka’ in the Critically Endangered category in the List. The Minister was satisfied that the requisite criteria was met for including Cairnsichthys rhombosomoides 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 were eligible for inclusion in the List. The Committee assessed Cairnsichthys bitaeniatus and Galaxias sp. nov. ‘Moroka’as eligible for inclusion in the Critically Endangered category in the List. The Committee assessed Cairnsichthys rhombosomoides 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 (393) Instrument 2023

 

 

Section 1 – Name

 

This section provides that the name of this instrument is the List of Threatened Species Amendment (393) 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)                    Cairnsichthys bitaeniatus

(b)                   Galaxias sp. nov. ‘Moroka’

 

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)                    Cairnsichthys rhombosomoides

 

 

 

 

 

 

 

 

 

 

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 (393) 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 Cairnsichthys bitaeniatus in the Critically Endangered category.
  • Include Galaxias sp. nov. ‘Moroka’ in the Critically Endangered category.
  • Include Cairnsichthys rhombosomoides 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 provide for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. The List of Threatened Species Amendment (393) Instrument 2023 amends the EPBC Act by including three specific species in the list of threatened species. This legislative instrument was made under the authority of the Minister for the Environment and Water, following consultation with the Threatened Species Scientific Committee. The instrument aims to address the problem of species decline by recognising and protecting those at significant risk of extinction. The species Cairnsichthys bitaeniatus and Galaxias sp. nov. 'Moroka' are categorised as Critically Endangered, while Cairnsichthys rhombosomoides is listed as Endangered due to various threats including habitat loss, climate change, invasive species, and disease. The instrument is designed to ensure that these species receive necessary protection and conservation measures in accordance with the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000.

Scope and Application

The List of Threatened Species Amendment (393) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 by adding three new species to the List of Threatened Species. Specifically, Cairnsichthys bitaeniatus and Galaxias sp. nov. ‘Moroka’ have been added to the Critically Endangered category, while Cairnsichthys rhombosomoides has been added to the Endangered category. This amendment applies nationally, affecting all persons and entities within Australia. The Act applies to any activities that may impact these species, including their habitats, and any entities or individuals conducting activities that may threaten these species. The inclusion of these species in the List imposes legal obligations under the Act, particularly concerning the protection and conservation of listed species and their habitats. The criteria for listing these species were met under the Environment Protection and Biodiversity Conservation Regulations 2000. The Instrument does not specify any exclusions, exemptions, or thresholds, and its operation is governed by the Act and Regulations. The legislative instrument itself does not engage any applicable rights or freedoms and is deemed compatible with human rights as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The List of Threatened Species Amendment (393) Instrument 2023 amends the Environment Protection and Biodiversity Conservation Act 1999 by modifying the list of threatened species, specifically adding three species into the relevant categories. Section 178(1) of the Act mandates the establishment of a list of threatened species, categorised as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Minister has added Cairnsichthys bitaeniatus and Galaxias sp. nov. ‘Moroka’ into the Critically Endangered category and Cairnsichthys rhombosomoides into the Endangered category, as detailed in Schedule 1 of the Instrument. This legislative amendment imposes specific obligations on the parties governed by the Act, particularly in relation to the protection and conservation of the listed species. The Act requires that these species be protected against threats such as habitat loss, climate change, invasive species, and disease. For example, under Section 179(3) and Section 179(4) of the Act, the Minister must ensure that species listed in the Critically Endangered or Endangered categories are safeguarded from risks that could lead to their extinction. The Regulations, particularly Regulation 7.01, further define the criteria for inclusion in these categories, ensuring that the listed species meet specific conditions for their threat status. Failure to comply with the provisions of the Act can result in various legal consequences. The Act includes provisions for offences and penalties for non-compliance, though the exact penalties are not detailed within the explanatory statement. Generally, violations of the Act can lead to both civil and criminal penalties. For instance, activities that harm listed species can be prosecuted under the criminal provisions of the Act, leading to fines and imprisonment. Additionally, civil penalties can be imposed for breaches of the Act, which may include substantial fines and orders for remediation of environmental harm. The Act's provisions are designed to ensure the protection and conservation of biodiversity, particularly focusing on threatened species. The legislative instrument, by amending the list of threatened species, reinforces the commitment to safeguarding these species from extinction. The inclusion of these species in the critically endangered and endangered categories underscores the urgency of protective measures and highlights the ongoing need for environmental conservation efforts.

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