EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment
(Nesoptilotis leucotis thomasi (300)) 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 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 Nesoptilotis leucotis thomasi in the Endangered category in the List.
This species is considered threatened by fire, climate change, habitat loss, degradation and modification, and invasive species.
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(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 Nesoptilotis leucotis thomasi in the 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 Nesoptilotis leucotis thomasi as eligible for inclusion in the 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
(Nesoptilotis leucotis thomasi (300)) 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 Nesoptilotis leucotis thomasi in the 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 (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 established a legislative framework for the protection of threatened species, with the Minister responsible for including species on the list of threatened species. The List of Threatened Species Amendment (Nesoptilotis leucotis thomasi (300)) Instrument 2021 amends the EPBC Act to include the species Nesoptilotis leucotis thomasi in the Endangered category in the List. The Minister for the Environment was satisfied that the species met the criteria for inclusion in the Endangered category under the EPBC Act and the Environment Protection and Biodiversity Conservation Regulations 2000. The policy objective of this legislative instrument is to protect and conserve the Nesoptilotis leucotis thomasi species, which is threatened by factors such as fire, climate change, habitat loss, degradation, and modification, and invasive species.
Scope and Application
The List of Threatened Species Amendment (Nesoptilotis leucotis thomasi (300)) Instrument 2021 pertains to the Environment Protection and Biodiversity Conservation Act 1999, which seeks to protect the environment and conserve biodiversity, including threatened species. This legislative instrument specifically targets the inclusion of the species Nesoptilotis leucotis thomasi, commonly known as the White-eared Honeyeater subspecies, into the Endangered category of the list of threatened species. The instrument applies to all entities and individuals within the Commonwealth of Australia, ensuring compliance with the Act’s provisions concerning the protection and conservation of the listed species. The Act's scope extends nationally, mandating adherence to its stipulations across all states and territories. There are no specific exclusions or exemptions outlined in this particular instrument, although the Act and associated regulations may provide for certain circumstances under which the general application of the Act may be modified or restricted. Subordinate instruments may further define or extend the application of the Act, including providing additional criteria or guidelines for species listing and conservation efforts.
Key Provisions
The primary operative sections of the List of Threatened Species Amendment (Nesoptilotis leucotis thomasi (300)) Instrument 2021 are sections 178 and 184(a) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 178 mandates the Minister for the Environment to establish a list of threatened species, categorising them into Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(a) allows the Minister to amend the list by including items in these categories through a legislative instrument. The current Instrument adds Nesoptilotis leucotis thomasi to the Endangered category, as it meets the criteria for listing under the Environment Protection and Biodiversity Conservation Regulations 2000.
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, the Minister must ensure that any species listed must meet the eligibility criteria specified in the Regulations. For Nesoptilotis leucotis thomasi, the eligibility for inclusion in the Endangered category was determined by satisfying the criteria outlined in Regulation 7.01, which assesses the risk of extinction in the wild. Secondly, the Minister must consult with relevant stakeholders, including the Threatened Species Scientific Committee, to evaluate the eligibility of the species for listing. This consultation is essential to consider public comments and scientific assessments before making any amendments to the list. Thirdly, the Minister must ensure that the species listed in the Endangered category face a very high risk of extinction in the wild in the near future, as per the criteria in the Regulations.
Breaches of the EPBC Act or the Regulations can result in significant civil and criminal consequences. For example, under Section 477 of the EPBC Act, any person who contravenes a direction or requirement specified in the Act can face fines up to AUD 324,000 for individuals and AUD 1,620,000 for corporations. Additionally, Section 485 of the Act allows for imprisonment of up to two years for breaches that are considered serious or repeated. These penalties underscore the importance of adhering to the provisions of the Act and the Regulations in protecting endangered species like Nesoptilotis leucotis thomasi. The severe consequences serve as a deterrent against activities that may threaten the survival of listed species.