List of Threatened Species Amendment (421) Instrument 2025

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

Legislation au F2025L00369 Not in force Legislative Instrument

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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 (421) Instrument 2025

 

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.

 

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

 

  • Milyeringa justitia in the Endangered category.

 

Milyeringa justitia is considered threatened due to industrial resource extraction activities, 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(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 Milyeringa justitia 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 Milyeringa justitia 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.

 

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 an amendment instrument made under section 184 of the Act. It is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).

 

The Instrument commences the day after registration.


 

 

Sunsetting and disallowance requirements

The Instrument is subject to the disallowance process under section 42 of the Legislation Act and the sunsetting regime set out in Part 4 of Chapter 3 of the Legislation Act. However, section 48A of the Legislation Act has the effect that, because the Instrument only amends another instrument, if it is not disallowed it will be automatically repealed at the end of the disallowance period. Once repealed, the sunsetting regime has no practical effect on the Instrument.

 

The List amended by the Instrument is exempt from sunsetting in accordance with table item 24 in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015, which specifies that sunsetting requirements do not apply to instruments made under section 178, 181 or 183 of the Act. This sunsetting exemption has applied to the List since the sunsetting regime was established by the Legislation Act on 1 January 2005. This means that the amendments given effect by the Instrument will be enduring.

 

The List is not appropriate for sunsetting, to ensure threatened species have ongoing regulatory protection under the Act. Species on the list may be threatened beyond 10 years and require continued protection through conservation advice, recovery plans and the assessment and approval processes under the Act. Amendments are made to the list following a stringent statutory review process set out in the Act, which provides an appropriate review mechanism to ensure the currency and accuracy of the List.


 

 

ATTACHMENT A

 

Details of the List of Threatened Species Amendment (421) Instrument 2025

 

 

Section 1 – Name

 

This section provides that the title of the instrument is the List of Threatened Species Amendment (421) Instrument 2025 (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 ENDANGERED

 

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

 

  1.                     Milyeringa justitia

 


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 (421) Instrument 2025

 

This Disallowable 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 Disallowable Legislative Instrument

The purpose of this Instrument is to amend the Environment Protection and Biodiversity Conservation Act 1999 list of threatened species to:

  • Include Milyeringa justitia 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 Disallowable 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 List of Threatened Species Amendment (421) Instrument 2025 is an instrument made under the Environment Protection and Biodiversity Conservation Act 1999, enacted to address the need for the protection of endangered species, specifically Milyeringa justitia. This instrument amends the Environment Protection and Biodiversity Conservation Act 1999 by adding Milyeringa justitia to the Endangered category on the list of threatened species. The inclusion of this species was determined following rigorous assessment by the Threatened Species Scientific Committee, which evaluated the species' eligibility for listing based on the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The Minister for the Environment and Water, following consultation and consideration of the Committee's assessment, concluded that the species met the requisite criteria for listing. This legislative amendment aims to ensure the ongoing conservation and protection of Milyeringa justitia, which is threatened by industrial activities and climate change. The instrument is subject to disallowance and sunsetting provisions under the Legislation Act 2003, although the list itself is exempt from sunsetting to ensure enduring protection for threatened species. The amendment process involved public consultation, with a minimum of 30 business days for public comment as stipulated in the Act. All relevant public comments were considered by the Threatened Species Scientific Committee as part of their assessment. The instrument is compatible with human rights and freedoms as it does not engage any of the applicable rights or freedoms as recognised under the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument will come into effect the day after its registration, ensuring immediate effect on the legal status of Milyeringa justitia.

Scope and Application

The List of Threatened Species Amendment (421) Instrument 2025 amends the Environment Protection and Biodiversity Conservation Act 1999 by including the species Milyeringa justitia in the Endangered category of the List of Threatened Species. This amendment applies to all entities and individuals within the Commonwealth of Australia, as the Environment Protection and Biodiversity Conservation Act 1999 is a national law. The inclusion of Milyeringa justitia in the Endangered category is based on its eligibility under the prescribed criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000, specifically concerning the risk of extinction due to industrial resource extraction activities and climate change. The amendment is subject to disallowance under the Legislation Act 2003 but is exempt from the sunsetting regime, ensuring enduring regulatory protection for the species. The Instrument was made after a consultation process that included public comment and consideration by the Threatened Species Scientific Committee, as required by the Act.

Key Provisions

The primary operative sections of the List of Threatened Species Amendment (421) Instrument 2025 pertain to the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (Act) list of threatened species. Section 4 of the Instrument amends the list under the heading “SPECIES THAT ARE ENDANGERED” to include Milyeringa justitia in the appropriate position. This amendment is made under section 184 of the Act, as stated in section 3 of the Instrument. The Instrument also includes a commencement clause, stating that it comes into effect the day after it is registered, as per section 2. The authority for making this amendment is explicitly provided in section 3, which references section 184 of the Act. The Act imposes several obligations and requirements on the parties or entities it governs. Under section 186(1), the Minister must not include a native species on the List in a particular category unless satisfied that the species is eligible to be included in that category. The eligibility criteria for inclusion in the Endangered category are detailed in section 179(4) of the Act and Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000. The Minister must be satisfied that Milyeringa justitia meets the criteria for being in the Endangered category, considering its risk of extinction due to industrial resource extraction activities and climate change. Furthermore, the Act requires consultation with relevant stakeholders, as outlined in Part 13, Division 1, Subdivision AA. This consultation was conducted by making a notice of the proposed amendment and a consultation document available for public comment for a minimum of 30 business days, as mandated by subsection 194M(3) of the Act. The Instrument delineates several potential consequences for breaches of the Act. Although the explanatory statement does not specify offences or penalties for non-compliance with the listing of Milyeringa justitia, the Act generally provides for enforcement mechanisms that may include civil and criminal penalties. For instance, unauthorised activities that threaten listed species can result in significant fines and imprisonment. The Instrument itself does not detail specific penalties but refers to the overarching Act and Regulations, which may impose fines and imprisonment for breaches related to the protection of threatened species. Additionally, the Instrument is subject to the disallowance process under section 42 of the Legislation Act and the sunsetting regime set out in Part 4 of Chapter 3 of the Legislation Act. However, because the Instrument only amends another instrument, if it is not disallowed, it will be automatically repealed at the end of the disallowance period, rendering the sunsetting regime practically ineffective. In summary, the List of Threatened Species Amendment (421) Instrument 2025 amends the Environment Protection and Biodiversity Conservation Act 1999 to include Milyeringa justitia in the Endangered category. This amendment imposes specific obligations on the Minister to ensure compliance with eligibility criteria and consultation requirements. While the Instrument does not specify particular penalties for non-compliance, the broader legislative framework provides for significant civil and criminal consequences for activities that threaten listed species. The Instrument is also subject to disallowance and sunsetting provisions, although its automatic repeal at the end of the disallowance period limits the practical impact of the sunsetting regime.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.