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 orgadophilum (262)) 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 Critically 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 Solanum orgadophilum (Capella Potato Bush) in the Critically Endangered category in the List.
This species is considered threatened by land clearing and management practises, accidental destruction, small population size, grazing, invasive weeds and inappropriate disturbance regimes.
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.
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 Solanum orgadophilum in the Critically 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 orgadophilum as eligible for inclusion in the List in 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(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 orgadophilum (262)) 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 orgadophilum in the Critically 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 orgadophilum (262)) Instrument 2021, introduced under the Environment Protection and Biodiversity Conservation Act 1999, aims to address the issue of declining biodiversity in Australia by further protecting threatened species. Enacted by the Parliament of Australia, this instrument specifically seeks to amend the list of threatened species to include Solanum orgadophilum, also known as the Capella Potato Bush, in the Critically Endangered category. The primary objective of this legislation is to safeguard native species that are at an extremely high risk of extinction in the wild, thereby contributing to the broader goal of biodiversity conservation as outlined in the Act. The instrument was developed following consultation with relevant stakeholders and the Threatened Species Scientific Committee, ensuring that the decision to list the species was based on rigorous assessment and public input.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the protection of the environment and biodiversity conservation across Australia, including the protection and conservation of threatened species. Under this Act, the Minister for the Environment has the authority to establish and amend a list of threatened species, which is divided into categories such as Extinct, Extinct in the wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. This legislative instrument amends the list by adding Solanum orgadophilum, commonly known as the Capella Potato Bush, to the Critically Endangered category. The inclusion of this species was determined based on its extremely high risk of extinction in the wild due to factors such as land clearing, small population size, grazing, invasive weeds, and inappropriate disturbance regimes. This decision was made following a consultation process that involved public comment and assessment by the Threatened Species Scientific Committee. The instrument applies nationally and is consistent with the EPBC Act, the Environment Protection and Biodiversity Conservation Regulations 2000, and the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The key operative sections of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) relevant to this legislative instrument are sections 178 and 184(a). Section 178 mandates the Minister to establish a list of threatened species, categorising them into groups such as Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. Section 184(a) allows the Minister to amend this list through a legislative instrument by adding species to it, provided they meet the criteria for inclusion. In this instance, the instrument seeks to include Solanum orgadophilum, also known as the Capella Potato Bush, in the Critically Endangered category. This addition is based on the species meeting specific eligibility criteria as outlined in the Environment Protection and Biodiversity Conservation Regulations 2000.
The Act imposes several obligations and requirements on the parties it governs. Firstly, the Minister must ensure that any native species listed as threatened is eligible for inclusion in the specified category based on meeting the criteria for that category. For a species to be listed as Critically Endangered, it must face an extremely high risk of extinction in the wild in the immediate future. The Minister must be satisfied with this assessment, which in this case involved consultation with the Threatened Species Scientific Committee and consideration of public comments. The Committee's assessment concluded that Solanum orgadophilum met the eligibility criteria for inclusion in the Critically Endangered category. Furthermore, the process of amending the list must include a public consultation period of at least 30 business days, as mandated by the EPBC Act.
Failure to comply with the provisions of the EPBC Act and the associated regulations can result in various civil and criminal consequences. While the specific penalties for breaches related to the listing of threatened species are not detailed in the explanatory statement, breaches of the EPBC Act can generally lead to substantial fines and, in severe cases, imprisonment. For instance, knowingly providing false or misleading information in relation to a listed threatened species could result in a penalty of up to five years' imprisonment or a fine of up to $330,000 for an individual, or higher penalties for corporations. Additionally, actions that significantly harm listed threatened species or their habitats could also attract penalties under both the EPBC Act and state or territory laws, depending on the circumstances. These consequences underscore the importance of adhering to the Act's requirements to protect and conserve biodiversity.