EXPLANATORY STATEMENT
(Issued under the Authority of the Minister for the Environment)
Environment Protection and Biodiversity Conservation Act 1999
List of Threatened Species Amendment (Solanum graniticum (263)) 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 (the Regulations) (see below).
Purpose of Instrument
The purpose of this Instrument is to amend the List by:
- Including Solanum graniticum (Granite Nightshade) in the Endangered category in the List.
This species is considered threatened by land clearing, stochastic events, genetic inbreeding, inappropriate fire regimes 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(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 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 satisfied that the requisite criteria was met for including Solanum graniticum 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 the Solanum graniticum 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 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 (Solanum graniticum (263)) 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 Solanum graniticum 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 List of Threatened Species Amendment (Solanum graniticum (263)) Instrument 2021 amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to address the conservation needs of the endangered species Solanum graniticum, commonly known as Granite Nightshade. Enacted by the Australian Parliament, the EPBC Act serves to protect the environment and conserve biodiversity, including threatened species. The primary issue this Instrument addresses is the escalating threat to the Granite Nightshade caused by factors such as land clearing, stochastic events, genetic inbreeding, inappropriate fire regimes, and climate change. The Minister for the Environment, in line with the EPBC Act's provisions, considered the assessment from the Threatened Species Scientific Committee and public consultations to ensure the species' eligibility for inclusion in the Endangered category. This legislative instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms under the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a Commonwealth legislation that aims to protect the environment and conserve biodiversity, including the protection and conservation of threatened species. The Act provides for the establishment of a list of threatened species, which is maintained and updated through legislative instruments. The List of Threatened Species Amendment (Solanum graniticum (263)) Instrument 2021 is an instrument made under the authority of the Minister for the Environment to amend the list of threatened species by including the species Solanum graniticum in the Endangered category of the List. This decision was made following an assessment by the Threatened Species Scientific Committee and consultation with the public in accordance with the EPBC Act. The Instrument applies to all persons and entities subject to the EPBC Act, including those engaged in activities that may impact on the listed species, across the Commonwealth of Australia. The Instrument does not contain any exclusions, exemptions, or thresholds, and its application is not extended or restricted by any subordinate instruments. The purpose of this amendment is to provide additional protection to the Granite Nightshade, which is considered threatened by various factors such as land clearing, stochastic events, genetic inbreeding, inappropriate fire regimes, and climate change.
Key Provisions
The main operative sections of the List of Threatened Species Amendment (Solanum graniticum (263)) Instrument 2021 (F2021L01726) pertain to the amendment of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) list of threatened species. Section 178 of the EPBC Act mandates the establishment of a list of threatened species, while Section 184(a) allows the Minister to amend this list by legislative instrument. The specific purpose of this Instrument is to include the species Solanum graniticum, commonly known as Granite Nightshade, within the Endangered category of the list. This decision follows the assessment by the Threatened Species Scientific Committee, which determined that the species meets the criteria for listing under the Regulations.
The obligations and requirements imposed by this Instrument are primarily on the Minister for the Environment, who must ensure that any inclusion of a native species on the list is based on satisfying criteria outlined in the Act and the Environment Protection and Biodiversity Conservation Regulations 2000. Subsection 186(1) of the EPBC Act stipulates that the Minister must not include a species on the list unless satisfied of its eligibility based on the prescribed criteria. The Minister must also ensure that a public consultation process is followed, as outlined in Part 13, Division 1, Subdivision AA of the Act. This involves providing notice of the proposed amendment and making a consultation document available for public comment for a minimum of 30 business days.
The Instrument also outlines the potential consequences for breach of the provisions under the EPBC Act. Although specific offences and penalties are not detailed in this particular Instrument, general provisions within the EPBC Act provide for both civil and criminal penalties for non-compliance with the Act's provisions. For example, under Section 508 of the EPBC Act, a person can be fined up to AUD 222,200 or imprisoned for up to two years, or both, for knowingly or recklessly contravening provisions of the Act. Furthermore, corporations can face fines up to AUD 1,111,000. These penalties serve as a deterrent against actions that could further endanger the listed species or compromise the objectives of the Act.