EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment (Philoria kundagungan (251)) 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 relevant category under the EPBC Regulations (see below).
Purpose of Instrument
The purpose of this instrument is to amend the List by:
- Including Philoria kundagungan in the Endangered category in the List.
This species is considered threatened due to climate change, habitat loss and fragmentation, disease 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.
The Minister was satisfied the species being included in the List in the Endangered category on the List met the requisite criteria.
Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the Regulations) relevantly 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 inclusion in the List. The Committee assessed the Philoria kundagungan as eligible for inclusion in the List in the Endangered category.
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(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 (Philoria kundagungan (251)) 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 Philoria kundagungan 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 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 the conservation of biodiversity, including the protection and conservation of threatened species. The Act mandates the Minister to establish a list of threatened species, divided into categories such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Pursuant to this mandate, the Environment Protection and Biodiversity Conservation (List of Threatened Species) Amendment (Philoria kundagungan (251)) Instrument 2021 was introduced to amend the list by adding the species Philoria kundagungan to the Endangered category. This decision was made in response to the species facing a very high risk of extinction due to factors such as climate change, habitat loss, fragmentation, disease, and invasive species. The Minister’s decision to include this species in the List was based on an assessment by the Threatened Species Scientific Committee and feedback from public consultation, ensuring the process was both thorough and inclusive. The instrument was enacted to align with the policy objectives of the EPBC Act, which aims to protect biodiversity and manage environmental impacts effectively.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is central to the protection and conservation of biodiversity in Australia, including the listing and management of threatened species. This Act applies to all persons, entities, and industries operating within the Commonwealth of Australia, encompassing a broad range of activities that may impact biodiversity. Specifically, the Act regulates the conduct and transactions that may affect listed threatened species, their habitats, or ecological communities. The geographic reach of the Act is national, as it applies across all states and territories within Australia, ensuring a unified approach to environmental conservation. The Act allows for the inclusion of species in various categories such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent based on the criteria outlined in the Environment Protection and Biodiversity Conservation Regulations 2000. The Act does not specify exclusions or exemptions but provides for the possibility of subordinate instruments to extend or restrict application, such as through specific regulations or guidelines. The List of Threatened Species Amendment (Philoria kundagungan (251)) Instrument 2021, issued under the authority of the Minister for the Environment, amends the List by including Philoria kundagungan in the Endangered category, reflecting its vulnerability to threats such as climate change, habitat loss, disease, and invasive species.
Key Provisions
The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 List of Threatened Species Amendment (Philoria kundagungan (251)) Instrument 2021 involve the inclusion of Philoria kundagungan into the Endangered category of the list of threatened species (section 178(1), 184(a)). The Act provides the framework for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. The inclusion of Philoria kundagungan in the Endangered category is based on the species meeting the criteria for listing in that category under the Environment Protection and Biodiversity Conservation Regulations 2000 (section 179(4), Regulation 7.01). This amendment is made to address the significant threats faced by the species, including climate change, habitat loss and fragmentation, disease, and invasive species.
The Act imposes several obligations on the parties and entities it governs. The Minister for the Environment is required to amend the list of threatened species in accordance with the prescribed criteria and processes set out in the Act. The Minister must be satisfied that the species meets the eligibility criteria for inclusion in the Endangered category before making the amendment (section 186(1)). Additionally, the Act mandates a consultation process, requiring the Minister to provide notice of the proposed amendment and a consultation document for public comment for a minimum of 30 business days (subsection 194M(3)). The Threatened Species Scientific Committee must assess the eligibility of the species and prepare a written assessment, which the Minister considers in making the instrument (Part 13, Division 1, Subdivision AA).
Breaches of the Act or its regulations may result in civil and criminal penalties. The maximum penalties for contravening the Act include fines and imprisonment terms. Specifically, under section 506 of the Act, a person can be fined up to $66,000 or imprisoned for up to six months, or both, for an offence involving the unauthorised taking, damaging, or destroying of a threatened species. For more serious offences, such as those involving deliberate actions that significantly harm a threatened species, the penalties can be more severe, with fines up to $660,000 and imprisonment for up to five years (subsection 506(3)). These penalties serve to deter non-compliance and enforce the protection of threatened species and their habitats.