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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Environment Protection and Biodiversity Conservation Amendment (Emergency
Listings) Bill 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Waters)
Environment Protection and Biodiversity Conservation Amendment (Emergency
Listings) Bill 2011
Outline
The Environment Protection and Biodiversity Conservation Amendment
(Emergency Listings) Bill 2011 provides for the emergency listing of
threatened species and ecological communities where they are at risk from a
significant and imminent threat.
NOTES ON CLAUSES
Part 1 - Preliminary
Clauses 1
This is a formal provision specifying the short title.
Clause 2 - Commencement
This provision sets out that the Act will commence on the day it receives
Royal Assent.
Clause 3 - Schedule
This provision gives effect to the amendments set out in Schedule 1 to the
Bill.
Schedule 1 - Amendments
Items 1 and 2
These provisions amend paragraphs 158A(1)(i) and 158A(1)(j) to ensure that
protection of emergency listed species and ecological communities will not
be precluded by operation of s.158A of the Act. This clarification is
required to ensure the purpose of emergency listing species and/ or
ecological communities is to be achieved. There are significant
environmental information gaps across Australia, particularly for many of
our rare and vulnerable species. All too often new species are only
discovered through the EIA process, so precluding their consideration as
soon as the initial controlled action decision has been made (as could
occur depending on interpretation of the current s.158A) would negate
protection of threatened species and ecological communities in all but the
rarest of situations.
It could be argued that a "listing event" for the purpose of the existing
s158A does not include an emergency listing event, however to avoid
ambiguity the proposed clarification is the preferred approach.
Item 3
This amends section 184(1)(a) to provide for amendment of threatened
species lists and threatened ecological communities lists, in accordance
with the proposed new emergency listings processes.
Item 4
Inserts new Subdivision AB into Division 1 of Part 13 of Chapter 5 -
Emergency listing process for threatened species. This Subdivision includes
the following new sections:
Section 194U defines threatened species list for the purposes of the
emergency listing of threatened species under this Subdivision.
Section 194V(1) provides that the Minister may, by instrument published in
the Gazette, include a native species in the threatened species list if the
Minister believes that the species is eligible to be included in a category
in the list, and that that species is subject to a likely and imminent
threat of a significant adverse impact.
Section 194V(2) provides that if a species is included on the threatened
species list under the emergency process, and it was already being
considered under the usual process in Subdivision AA, the usual process
ceases to apply. This would not prevent the usual process restarting if,
for example, the species ceases to be listed and it is nominated again.
Section 194V(3) provides for public notification of emergency listings
made. This is to occur on the internet, and as provided for in the
regulations (if any), with 10 business day of the publication of the
emergency listings instrument in the Gazette.
Section 194W requires that, following the emergency listing of a threatened
species, the Minister must request that the Scientific Committee undertake
an assessment of the species' eligibility to be included in a category in
the threatened species list, and the request must specify a completion date
for the assessment. In setting the completion time, it needs to be
considered that under section 194ZA, the Minister must make a decision as
to whether the species will remain on the threatened species list within 12
months of the emergency listing.
Section 194X sets out the process for the Scientific Committee to publish a
notice about the listing of the species, and to seek public comment.
Section 194Y applies the provisions of the usual Scientific Council
assessment process for threatened species as set out in section 194N, and
other sections that refer to section 194N, to the threatened species
emergency listing process.
Section 194Z applies the timing provisions applicable to the usual
threatened species listings assessment, as set out in section 194P and
sections which refer to section 194P, to the threatened species emergency
listings assessment.
Section 194ZA(1) requires that within 12 months of an emergency listing of
a threatened species, the Minister must, by instrument in the Gazette state
whether the species remains in the threatened species list; alter the
category of listing; or remove the species from the list. Subsection (2)
states that Minister cannot make this instrument unless the Minister has
received the Scientific Committee's assessment of the species' eligibility
for listing.
Section 194ZA(3) requires that the Minister can only make a decision that
means the species remains in the threatened species list if the Minister is
satisfied that the species is eligible to be included in a category in the
threatened species list.
Section 194ZA(4) provides that the emergency listing of a species lapses
automatically unless the Minister makes a decision to continue its listing,
in accordance with section 194Z(1).
Section 194ZA(5) sets out the matters the Minister must consider when
making a decision (under Section 194ZA(1)) whether an emergency listed
species should remain in the threatened species list. The Minister must
have regard to the Scientific Committee's assessment, and any comments
received on the assessment. The Minister may also seek and have regard to
information or advice from any source.
Section 194ZA(6) sets out that the Minister must publish the instrument
containing the decision on whether an emergency listed species should
remain in the threatened species list, and that the regulations may provide
for how the publication is to be made.
Section 194ZA(7) inserts an additional requirement for publication on the
internet within 10 days of an instrument that removes the emergency listed
species from the threatened species list, or that alters the category in
which a species is included.
Section 194ZA(8) requires that, where a species is removed from the
threatened species list due to automatic lapsing of the listing (as the
required instrument under section 194ZA(1) was not made within 12 months),
the Minister must publish a notice of the removal within 10 business days
after the removal.
Item 4 also inserts new Subdivision AC into Division 1 of Part 13 of
Chapter 5 - Emergency listing process for threatened ecological
communities.
This subdivision includes the following new sections:
Section 194ZB defines threatened ecological communities list for the
purposes of the emergency listing of threatened ecological communities
under this subdivision.
Section 194ZC(1) provides that the Minister may, by instrument published in
the Gazette, include an ecological community in the threatened ecological
communities list if the Minister believes that the ecological community is
eligible to be included in a category in the list, and that that ecological
community is subject to a likely and imminent threat of a significant
adverse impact.
Section 194ZC(2) provides that if an ecological community is included on
the ecological communities list under the emergency process, and it was
already being considered under the usual process in Subdivision AA, the
usual process ceases to apply. This would not prevent the usual process
restarting if, for example, the ecological community ceases to be listed
and it is nominated again.
Section 194ZC(3) provides for public notification of emergency listings
made. This is to occur on the internet, and as provided for in the
regulations (if any), with 10 business day of the publication of the
emergency listings instrument in the Gazette.
Section 194ZD requires that, following the emergency listing of a
threatened ecological community, the Minister must request that the
Scientific Committee undertake an assessment of the ecological community's
eligibility to be included in a category in the threatened ecological
communities list, and the request must specify a completion date for the
assessment. In setting the completion time, it needs to be considered that
under section 194ZA, the Minister must make a decision as to whether the
ecological community will remain on the ecological communities list within
12 months of the emergency listing.
Section 194ZE sets out the process for the Scientific Committee to publish
a notice about the listing of the ecological community, and to seek public
comment.
Section 194ZF applies the provisions of the usual Scientific Council
assessment process for threatened ecological community as set out in
section 194N, and other sections that refer to section 194N, to the
threatened ecological communities' emergency listing process.
Section 194ZG applies the timing provisions applicable to the usual
threatened ecological communities listings assessment, as set out in
section 194P and sections which refer to section 194P, to the threatened
ecological communities emergency listings assessment.
Section 194ZH(1) requires that within 12 months of an emergency listing of
a threatened ecological community, the Minister must, by instrument in the
Gazette state whether the ecological community remains in the threatened
ecological communities list; alter the category of listing; or remove the
ecological community from the list. Subsection (2) states that Minister
cannot make this instrument unless the Minister has received the Scientific
Committee's assessment of the ecological community's eligibility for
listing.
Section 194ZH(3) requires that the Minister can only make a decision that
means the ecological community remains in the threatened ecological
communities list if the Minister is satisfied that the ecological community
is eligible to be included in a category in the threatened ecological
community list.
Section 194ZH(4) provides that the emergency listing of an ecological
community lapses automatically unless the Minister makes a decision to
continue its listing, in accordance with section 194ZH(1).
Section 194ZH(5) sets out the matters the Minister must consider when
making a decision (under Section 194ZH(1)) whether an emergency listed
ecological community should remain in the threatened ecological communities
list. The Minister must have regard to the Scientific Committee's
assessment, and any comments received on the assessment. The Minister may
also seek and have regard to information or advice from any source.
Section 194ZH(6) sets out that the Minister must publish the instrument
containing the decision on whether an emergency listed ecological community
should remain in the threatened ecological communities list, and that the
regulations may provide for how the publication is to be made.
Section 194ZH(7) inserts an additional requirement for publication on the
internet within 10 days of an instrument that removes an emergency listed
ecological community from the threatened ecological communities list, or
that alters the category in which an ecological community is included.
Section 194ZH(8) requires that, where an ecological community is removed
from the threatened species list due to automatic lapsing of the listing
(as the required instrument under section 194ZH(1) was not made within 12
months), the Minister must publish a notice of the removal within 10
business days after the removal.
Item 5
This provision amends the list of decisions under section 391(3) of the
Act. This is a list of decisions in which the precautionary principle must
be considered. This amendment requires that the precautionary principle be
considered in the decisions relating to emergency listings provided for in
this bill.