EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment
(Megaptera novaeangliae (279)) Instrument 2022
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(b) of the Act relevantly provides that the Minister may, by legislative instrument, amend the List referred to in section 178 by deleting items within the List in accordance with Subdivision AA.
The species being deleted in the List did not meet the criteria for listing in any category under the Environment Protection and Biodiversity Regulations 2000 (Regulations)(see below).
Purpose of Instrument
The purpose of this instrument is to amend the List by:
- Deleting Megaptera novaeangliae (Humpback Whale) from the Vulnerable category from the List.
This species population is currently stable and no adverse effects to its survival are expected by delisting the species.
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.
Regulation 7.01 ofthe Regulations relevantly 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 not satisfied that the requisite criteria was met for including Megaptera novaeangliae in any 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 deletion from the List. The Committee assessed the Megaptera novaeangliae as ineligible for inclusion in any 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(b) 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
(Megaptera novaeangliae (279)) Instrument 2022 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: - Delete Megaptera novaeangliae from the Vulnerable category from the List
The species being removed from the list did not meet the criteria for listing in any of the relevant categories 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 (EPBC Act) was enacted by the Parliament of Australia 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 management of species at risk, aiming to prevent extinctions and promote the recovery of threatened species. One of the mechanisms provided by the Act is the creation and maintenance of a list of threatened species, which is categorised based on the level of risk to their survival. The List of Threatened Species Amendment (Megaptera novaeangliae (279)) Instrument 2022 was introduced to address the need for the periodic review and amendment of the threatened species list based on updated scientific assessments. This particular instrument aimed to remove the Humpback Whale, Megaptera novaeangliae, from the Vulnerable category, reflecting its stable population and reduced risk of extinction. The decision to amend the list was made after careful consideration of scientific advice and public consultation, ensuring that the legislative changes align with the policy objective of maintaining an accurate and scientifically-backed list of threatened species.
Scope and Application
The List of Threatened Species Amendment (Megaptera novaeangliae (279)) Instrument 2022 amends the Environment Protection and Biodiversity Conservation Act 1999 by deleting Megaptera novaeangliae, commonly known as the Humpback Whale, from the List of Threatened Species. This legislative instrument applies to the Minister for the Environment, who has the authority to amend the list under the Act. The decision to delist the species was made after considering the assessment from the Threatened Species Scientific Committee and public consultation, which revealed that the species did not meet the criteria for inclusion in any category of the List. The Act applies across Australia, including the Commonwealth, states, territories, and national parks, and it ensures the protection and conservation of biodiversity. The instrument does not specify any exclusions or exemptions, and it extends the application of the Act by modifying the list of threatened species. The amendment is compatible with human rights as it does not engage any of the rights or freedoms recognised in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) in this context are sections 178 and 184(b). Section 178(1) mandates that the Minister must establish a list of threatened species, which is divided into categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(b) provides the authority for the Minister to amend the list by deleting species that no longer meet the criteria for inclusion. In this case, the specific amendment involves the deletion of Megaptera novaeangliae, commonly known as the Humpback Whale, from the Vulnerable category of the threatened species list. This change is based on the assessment that the species' population is stable and that delisting is unlikely to adversely affect its survival.
The obligations and requirements imposed by the Act on the parties or entities it governs are primarily centered around the maintenance and updating of the threatened species list. The Minister is obligated to ensure that the list accurately reflects the conservation status of species, including the removal of species that no longer meet the criteria for inclusion in any category. This involves a thorough assessment process that includes consultation with the Threatened Species Scientific Committee, as well as public consultation, to gather relevant information and expert opinions on the species in question. The Committee's role is to provide a written assessment on the eligibility of the species for inclusion or deletion from the list, based on the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000. The Minister must consider this assessment and any public comments received during the consultation period before making a decision.
The Act also outlines specific offences, penalties, and consequences for breaches related to the protection of threatened species. While the primary focus of this instrument is on the amendment of the threatened species list, it is important to note that the EPBC Act includes provisions for enforcing compliance with its requirements. Offences related to the unauthorised harm or killing of listed threatened species can result in significant penalties. For example, under section 240 of the Act, individuals or entities found guilty of intentionally or recklessly causing harm to a listed threatened species may face fines of up to $375,000 for a corporation and $75,000 for an individual, or imprisonment for up to five years, or both. These penalties underscore the seriousness with which the Act treats the protection of biodiversity and the conservation of threatened species.