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 EPBC Act mandates the establishment of a list of threatened species, which is periodically updated to reflect the changing conservation status of various species. The Act also empowers the Minister for the Environment to amend the list by transferring species between different categories of threat, such as from Endangered to Critically Endangered, based on scientific assessments and public consultation. The List of Threatened Species Amendment (Taudactylus rheophilus) (275)) Instrument 2021, made under the authority of the Minister for the Environment, was introduced to address the need to reflect the severe decline in the population of the Tinkling Frog (Taudactylus rheophilus), which now faces an extremely high risk of extinction due to factors such as disease, habitat loss, climate change, and invasive species. This legislative instrument aims to appropriately categorise the species within the EPBC Act's list to ensure that it receives the highest level of protection and conservation efforts.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) establishes a legislative framework for the protection of the environment and conservation of biodiversity, including the protection and conservation of threatened species. The Act empowers the Minister for the Environment to maintain and amend a list of threatened species, which is categorised into Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, and Conservation Dependent. This legislative instrument amends the list by transferring the species Taudactylus rheophilus, commonly known as the Tinkling Frog, from the Endangered category to the Critically Endangered category. This amendment reflects the species' heightened vulnerability due to threats such as disease, climate change, and invasive species. The Minister for the Environment is mandated to ensure that any inclusion or transfer of a native species into the threatened species list is based on eligibility criteria, including the determination that the species faces an extremely high risk of extinction in the wild. The decision to transfer Taudactylus rheophilus to the Critically Endangered category was preceded by a thorough consultation process involving the Threatened Species Scientific Committee and public comment, in accordance with the EPBC Act. The instrument is a legislative instrument under the Legislation Act 2003 and becomes effective the day after registration, affirming its compatibility with human rights as it does not engage any applicable rights or freedoms.

Key Provisions

The main operative sections of this legislative instrument are sections 178 and 184(c) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 178 requires the Minister to establish a list of threatened species, separated into categories such as Extinct, Critically Endangered, Endangered, and Vulnerable. Section 184(c) provides that the Minister may amend the List by transferring items within the List, such as moving Taudactylus rheophilus (the Tinkling Frog) from the Endangered category to the Critically Endangered category. This amendment is made pursuant to the criteria outlined in the EPBC Regulations, specifically Regulation 7.01 which sets out the criteria for listing a species as critically endangered, endangered, or vulnerable. The Act imposes several obligations on the Minister when transferring a species within the List. Firstly, under section 186(1), the Minister must not include a native species in a particular category unless satisfied it is eligible to be included in that category. Eligibility for inclusion in the Critically Endangered category is determined under section 179(3) of the Act, which requires the species to be facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria. The Minister must also ensure that the transfer is made in accordance with the consultation processes outlined in Part 13, Division 1, Subdivision AA of the Act, which include providing notice of the proposed amendment and a consultation document for public comment for a minimum of 30 business days. Public comments received during this period are considered by the Threatened Species Scientific Committee as part of the assessment process. The legislative instrument also outlines the consequences for breach of the Act. While the document does not specify maximum penalties for non-compliance, breaches of the EPBC Act can result in substantial penalties under various sections of the Act. For instance, offences related to the protection of listed threatened species can lead to fines and imprisonment. Specifically, under section 309 of the Act, a person who contravenes a direction given under the Act can be subject to penalties, including fines of up to $222,200 for individuals and $1,111,000 for corporations, and imprisonment for up to five years. Further, under section 474, a person who intentionally engages in conduct that is likely to harm a listed threatened species can face fines of up to $555,500 for individuals and $2,777,500 for corporations, and imprisonment for up to five years. These penalties underscore the seriousness of non-compliance with the Act and the importance of adhering to its provisions to protect threatened species.