EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment (Hibbertia circinata (270)) Instrument 2021
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 (List) separated into the following categories: Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable and Conservation Dependent.
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 category under the Environment Protection and Biodiversity Conservation Regulations 2000 (Regulations) (see below).
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Including Hibbertia circinata in the Critically Endangered category in the List.
This species is considered threatened by pathogens, fire, feral herbivores, weeds and climate change.
Subsection 186(1) of the Act provides that the Minister must not include a native species on the List (whether as a result of a transfer or otherwise) in a particular category unless satisfied it 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.
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 circinata being included in the Critically 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). 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 the Hibbertia circinata as eligible for inclusion in the Critically Endangered category in the List.
In making this Instrument, the Minister considered the Committee’s written assessment and the comments received during the consultation period in accordance with Part 13, Division 1, Subdivision AA of the Act.
This Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and commences the day after registration.
Authority: sections 178 and 184(a) of the Environment Protection and Biodiversity Conservation Act 1999.
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 (Hibbertia circinata (270))
Instrument 2021 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 circinata in the Critically Endangered category in the List
The species being included in the List met the criteria for listing in the relevant category under the Regulations. 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 Sussan Ley MP Minister for the Environment |
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (Act) was enacted to provide for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. Pursuant to the Act, the Environment Minister is required to establish a list of threatened species, categorised into Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. The Act allows for amendments to this list to be made by legislative instrument. The List of Threatened Species Amendment (Hibbertia circinata (270)) Instrument 2021 was introduced to address the problem of the declining population of Hibbertia circinata, a species threatened by pathogens, fire, feral herbivores, weeds, and climate change. The Instrument aims to include Hibbertia circinata in the Critically Endangered category of the list, ensuring it receives the necessary protections. The decision to amend the list was made following consultations with the Threatened Species Scientific Committee and public consultation, ensuring that the requisite criteria were met for the species to be listed as Critically Endangered. This legislative instrument was made by the Minister for the Environment, in accordance with the authority granted by sections 178 and 184(a) of the Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) serves to safeguard the environment and conserve biodiversity, including the protection of threatened species. Pursuant to this Act, the Minister for the Environment has the authority to amend the list of threatened species through legislative instruments. The List of Threatened Species Amendment (Hibbertia circinata (270)) Instrument 2021 specifically amends the EPBC Act's list by adding Hibbertia circinata to the Critically Endangered category. This decision follows the assessment by the Threatened Species Scientific Committee, which concluded that Hibbertia circinata meets the criteria for inclusion in this category due to threats such as pathogens, fire, feral herbivores, weeds, and climate change. The instrument is applicable across the Commonwealth of Australia and involves no exclusions, exemptions, or thresholds beyond those already stipulated in the EPBC Act and the Environment Protection and Biodiversity Conservation Regulations 2000. The process for amending the list includes a public consultation period, and any relevant comments were considered by the Committee in their assessment. This legislative instrument is compatible with human rights, as it does not engage any applicable rights or freedoms under the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The main operative sections of the List of Threatened Species Amendment (Hibbertia circinata (270)) Instrument 2021 (paragraphs (1) to (4)) provide for the inclusion of Hibbertia circinata in the Critically Endangered category of the List of Threatened Species under the Environment Protection and Biodiversity Conservation Act 1999. This means that the Minister for the Environment has amended the List to recognise Hibbertia circinata as a species facing an extremely high risk of extinction in the wild in the immediate future. The inclusion of the species is based on its eligibility under the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000, which the Threatened Species Scientific Committee assessed as being met.
The Act imposes several obligations and requirements on parties and entities it governs. Under subsection 186(1), the Minister must not include a native species on the List in a particular category unless satisfied it is eligible to be included in that category. This means that the Minister must ensure the species meets the eligibility criteria before including it in the List. Under subsection 179(3), 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. This involves an assessment by the Threatened Species Scientific Committee, which must prepare a written assessment of the species' eligibility for inclusion in the List. Additionally, the Act requires the Minister to consult with the public and consider any relevant comments received during the consultation period before making the amendment to the List.
The Act also sets out potential offences, penalties, or civil/criminal consequences for breach, although these are not explicitly detailed in the Explanatory Statement. Generally, under the Environment Protection and Biodiversity Conservation Act 1999, unauthorised actions that harm listed threatened species or their habitats can lead to civil or criminal penalties. For civil penalties, the maximum penalty can be significant, depending on the nature and extent of the breach. For example, under section 509 of the Act, the maximum penalty for knowingly or recklessly contravening a direction can be $66,600 for an individual or $333,300 for a body corporate. Criminal penalties can also apply, with maximum penalties varying based on the specific offence and jurisdiction, potentially including imprisonment terms and substantial fines. The precise penalties would be determined based on the specific provisions of the Act and any relevant regulations or subsidiary legislation.