EXPLANATORY STATEMENT

(Issued by the authority of the Minister for the Environment and Water)

Environment Protection and Biodiversity Conservation Act 1999

List of Threatened Species Amendment (405) Instrument 2024

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 of threatened species, List of threatened ecological communities and List of threatening processes (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 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:

• Banksia paludosa subsp. astrolux in the Critically Endangered category.
• Boronia imlayensis in the Critically Endangered category.
• Banksia penicillata in the Endangered category.
• Pultenaea aculeata in the Endangered category.

• Transferring the following species by deleting the species from the Vulnerable category in the List and including it in the Endangered category in the List:
  •  Persoonia acerosa

Banksia paludosa subsp. astrolux is considered threatened due to fire regimes that cause declines in biodiversity, climate change, disease, habitat loss disturbance and modification.

Boronia imlayensis is considered threatened due to disease, fire regimes that cause declines in biodiversity, climate change, site disturbance and invasive species.

Banksia penicillata is considered threatened due to fire regimes that cause declines in biodiversity, climate change, disease and habitat disturbance.

Pultenaea aculeata is considered threatened due to fire regimes that cause declines in biodiversity, climate change, invasive species, disease, habitat loss, disturbance and modification impacts.

Persoonia acerosa is considered threatened due to climate change, fire regimes that cause declines in biodiversity, pollination failure, habitat disturbance and modification, invasive species, 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 186(2B) of the Act provides that in deciding whether to delete a native species from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to whether the native species is eligible to be included in that category or the effect that the inclusion of the native species in that category is having, or could have, on the survival of the species.

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 Banksia paludosa subsp. astrolux and Boronia imlayensis in the Critically Endangered category in the List. The Minister was satisfied that the requisite criteria was met for including Banksia penicillata and Pultenaea aculeata in the Endangered category in the List. The Minister was satisfied that the requisite criteria was met for transferring Persoonia acerosa from the Vulnerable to the Endangered category within 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 Banksia paludosa subsp. astrolux and Boronia imlayensis as eligible for inclusion in the Critically Endangered category in the List. The Committee assessed Banksia penicillata and Pultenaea aculeata as eligible for inclusion in the Endangered category in the List. The Committee assessed Persoonia acerosa as eligible for transfer from the Vulnerable to the Endangered category within 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.

Other

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 full statement of compatibility is set out in Attachment B.

The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.

The Instrument commences the day after registration.

Authority: section 184 of the Environment Protection and Biodiversity Conservation Act 1999.

ATTACHMENT A

Details of the List of Threatened Species Amendment (405) Instrument 2024

Section 1 – Name

This section provides that the title of the instrument is the List of Threatened Species Amendment (405) Instrument 2024 (the Instrument).

Section 2 – Commencement

This section provides that the Instrument commences on the day after it is registered.

Section 3 – Authority

This section provides that the Instrument is made under section 184 of the Environment Protection and Biodiversity Conservation Act 1999.

Section 4 – Schedules

This section is a machinery clause which provides that the Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes (Principal Instrument) is amended as set out in the applicable items in Schedule 1, and any other item in Schedule 1 to the Instrument has effect according to its terms.

Schedule 1- Amendments

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:

1.                     Banksia paludosa subsp. astrolux
2.                    Boronia imlayensis

Item 2 – SPECIES THAT ARE ENDANGERED

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

1.                     Banksia penicillata
2.                    Pultenaea aculeata
3.                     Persoonia acerosa

Item 3 – SPECIES THAT ARE VULNERABLE

Item 3 amends the list under the heading “SPECIES THAT ARE VULNERABLE” to omit in the appropriate position the following species:

1.                     Persoonia acerosa

ATTACHMENT B