EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment (Litoria spenceri) (259)) 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(c) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by transferring items within the List in accordance with Subdivision AA.
The species being transferred to other category in the List met the criteria for listing in the Critically Endangered category under the EPBC Regulations (see below).
Purpose of Instrument
The purpose of this instrument is to amend the List by:
- Transferring Litoria spenceri (Spotted Tree Frog) by deleting it from the Endangered category in the List and including it in the Critically Endangered category within the List
This species is considered threatened due to predation from invasive species, habitat degradation by invasive weeds, disease, habitat loss and fragmentation and climate change (increased heatwaves, change to rainfall patterns and increased intensity/frequency of wildfire).
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.
The Minister was satisfied the species being transferred to the Critically Endangered category on the List met the requisite criteria.
Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the Regulations) provides that for subsection 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.
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 transferring in the List. The Committee assessed Litoria spenceri as eligible for transfer from the Endangered category to 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 EPBC 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(c) 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 (Litoria spenceri) (259)) 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: - Transfer Litoria spenceri by deleting it from the Endangered category in the List and including it in the Critically Endangered category within the List
The species being transferred within the list met the criteria for listing in the relevant category under the EPBC 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 (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 Act establishes a framework for the identification, protection, and conservation of species that are at risk of extinction, and includes provisions for the creation of a list of threatened species. This legislative instrument, the List of Threatened Species Amendment (Litoria spenceri) (259)) Instrument 2021, was introduced to address the need for updating the conservation status of certain species. The Minister for the Environment, under the authority granted by the EPBC Act, has amended the List to better reflect the current status of the Spotted Tree Frog (Litoria spenceri), transferring it from the Endangered category to the Critically Endangered category due to the severe threats it faces, including predation, habitat degradation, disease, habitat loss, fragmentation, and climate change. The decision was made after consultation with the Threatened Species Scientific Committee and public consultation, in line with the requirements set out in the EPBC Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the protection of the environment and biodiversity in Australia, with a specific focus on the conservation of threatened species. This Act mandates the establishment and maintenance of a list of threatened species, which is managed and updated by the Minister for the Environment. Under the authority granted by the EPBC Act, the Minister can amend this list through legislative instruments, as seen with the "List of Threatened Species Amendment (Litoria spenceri) (259)) Instrument 2021." This specific instrument concerns the transfer of Litoria spenceri, commonly known as the Spotted Tree Frog, from the Endangered category to the Critically Endangered category on the List, reflecting its heightened risk of extinction due to various threats including invasive species, habitat loss, and climate change. The instrument applies nationally across Australia, impacting all persons, entities, and industries that may interact with or affect this species and its habitat. The instrument also extends to territories and external territories under Commonwealth jurisdiction, ensuring consistent protection measures across the country. However, the instrument does not specify any exclusions or exemptions, implying that all aspects of the Act apply uniformly to the specified species. The EPBC Act and its regulations may be further extended or restricted through subordinate instruments, allowing for adaptive management of threatened species based on scientific assessments and changing environmental conditions.
Key Provisions
The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to this amendment are sections 178 and 184(c). Section 178 requires the Minister to establish a list of threatened species, which is categorised into Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(c) allows the Minister to amend this list by transferring species between categories through a legislative instrument. This amendment involves transferring Litoria spenceri, commonly known as the Spotted Tree Frog, from the Endangered category to the Critically Endangered category. The decision to transfer this species is based on the assessment that it meets the criteria for the Critically Endangered category, indicating an extremely high risk of extinction in the wild.
The obligations and requirements imposed by this Act on the parties and entities it governs include the necessity for the Minister to be satisfied that a species meets the eligibility criteria for the category into which it is being transferred. The Minister must also ensure that public consultation is undertaken for a minimum of 30 business days as mandated by subsection 194M(3) of the Act. In this case, the Minister considered the assessment by the Threatened Species Scientific Committee and the public comments received during the consultation period. The Minister's decision to transfer Litoria spenceri to the Critically Endangered category is based on the species facing an extremely high risk of extinction due to various threats such as predation from invasive species, habitat degradation, disease, habitat loss, fragmentation, and climate change.
Offences, penalties, or consequences for breach of the provisions in the EPBC Act can be both civil and criminal, depending on the nature and severity of the breach. For instance, unauthorised actions that result in the harm or destruction of a listed threatened species can lead to criminal charges, with potential penalties including substantial fines and imprisonment. While the specific maximum penalties are not detailed in the explanatory statement, the Act generally imposes strict penalties to enforce compliance with its conservation objectives. Failure to adhere to the regulations designed to protect listed species can result in significant legal repercussions for individuals or entities found in breach of the Act's provisions.