Commonwealth legislation

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) is the most significant Commonwealth legislation relating to environmental protection, sustainable development and the conservation of biodiversity. The EPBC Act includes assessment and approval processes for certain actions, as well as provisions to protect biodiversity. It is not easy to separate these two aspects of the Act, as the former impacts significantly on the latter.

The actions that must be assessed and approved fall into two broad groups. The first group are actions carried out by the Commonwealth or its agencies, or those carried out on Commonwealth land or that will have an impact on Commonwealth land, and that are likely to have a significant impact on the environment. The second group is actions likely to have a significant impact on ‘matters of national environmental significance’. Currently those matters are:

• listed threatened species and communities
• listed migratory species
• Ramsar wetlands of international importance
• the Commonwealth marine environment
• World Heritage properties
• National Heritage places
• nuclear actions (including uranium mining)
• the Great Barrier Reef Marine Park
• water resources, in relation to coal seam gas and large coal mining developments.

As the ACT has many Commonwealth agencies and much Commonwealth land, as well as a Ramsar wetland at Ginini Flats in Namadgi National Park, numerous migratory species and listed threated species and communities, the EPBC Act is an important law applicable in the territory (see Chapter 4 in this Handbook for more information on the referral and assessment processes of the EPBC Act).

Assessments can be on a project by project basis or at a landscape scale (strategic assessments). The ACT has recently had 2 plans endorsed and actions under those plans approved subsequent to a strategic assessment:

• the 2013 Gungahlin Strategic Assessment Biodiversity Plan, Final
• the 2011 Molonglo Valley Plan for the Protection of Matters of National Environmental Significance (NES Plan).

Identifying species and communities at risk

The EPBC Act also provides for the:

• identification and monitoring of biodiversity and making of bioregional plans
• identification and listing of threatened species and threatened ecological communities and key threatening processes
• development of recovery plans, threat abatement plans and wildlife conservation plans
• regulation of trade in wildlife and access to biological resources
• administration of a Register of Critical Habitat
• compliance and enforcement of the Act.

The EPBC Act lists threatened species under six categories: extinct, extinct in the wild, critically endangered, endangered, vulnerable and conservation dependent. There are three categories of threatened ecological communities: critically endangered, endangered and vulnerable (see Table 1 for the list of threatened species and ecological communities under the EPBC Act that are also present in the ACT).

At the time of writing there were 21 listed key threatening processes under the EPBC Act, including: land clearance; dieback; competition and land degradation by feral goats and rabbits; predation by feral cats, exotic rats and the European red fox; predation, habitat destruction, competition and disease transmission by feral pigs; exclusion of birds from potential habitat by noisy miners, incidental catch of sea turtle and sea birds; injury and fatality to vertebrate marine life caused by harmful marine debris; novel biota and their impact on biodiversity; diseases affecting amphibians and endangered birds; biological effects of cane toads; loss of biodiversity due to invasive ant species; loss and degradation of native plant and animal habitat by invasion of escaped garden plants and introduced grasses; and the loss of climatic habitat caused by anthropocentric emissions of greenhouse gases.

Any person may nominate a native species, ecological community or threatening process for listing under any of the categories specified in the EPBC Act.

Nominations, except those that are vexatious, frivolous or not made in good faith, are forwarded by the Commonwealth Minister (‘minister’) to the Threatened Species Scientific Committee. The committee prepares a priority assessment list for the minister who finalises the list. The committee then consults with stakeholders on the finalised priority assessment list, and assesses each nomination against the relevant criteria. Once the threatened species committee has completed the assessment, its advice is forwarded to the minister who makes the final decision. If the minister accepts the recommendation, then the species, community or process is added to the lists under the EPBC Act.

Protecting biodiversity

Recovery plans made, adopted or implemented under the Act set out what must be done to protect and restore important populations of threatened species and communities, as well as how to manage and reduce threatening processes. Before making or adopting a recovery plan the minister must:

• consult with relevant state and territory ministers where the species or community occurs
• consider advice from the Threatened Species Scientific Committee
• invite public comment
• consider all comments received.

Various species listed as vulnerable or endangered under the ACT’s Nature Conservation Act also have recovery plans under the EPBC Act, including the Smoky Mouse (Pseudomys fumeus), Striped Legless Lizard (Delma impar), Trout Cod (Maccullochella macquariensis) and Tuggeranong Lignum (Muehlenbeckia tuggeranong).

If a habitat is identified in a recovery plan as critical to the survival of a species or community, then the minister must consider whether to list that habitat on the Register of Critical Habitat. Damaging critical habitat in a Commonwealth area is punishable by a fine of up to 1,000 penalty units (currently $170,000) or imprisonment for two years or both (s 207B).

Threat abatement plans cover the research and management actions that need to be taken to reduce the impact of a listed key threatening process to an acceptable level in order to maximise the chances of the long-term survival in nature of native species and ecological communities affected by the process (s 271). Within 90 days of listing a process, the minister must decide whether an abatement plan is a feasible, effective and efficient way to abate the process. If a plan is to be developed, that fact must be advertised and comment invited. At the time of writing 14 plans had been approved including: those relating to beak and feather disease affecting endangered parrots (Psittacine species); infection of amphibians with chytrid fungus resulting in chytridiomycosis; sea bird by-catch during long-line fishing; dieback caused by the root-rot fungus Phytophthora cinnamomi; the activities of feral cats, pigs, rabbits, rodents, goats, and foxes; and reduction in impacts of tramp ants on biodiversity in Australia and its territories.

Other protective tools under the EPBC Act are legally binding conservation agreements between the minister and another person for the protection and conservation of biodiversity (pt 14). These can require, among other things, that a person carry out certain activities, refrain from carrying out activities, or spend granted money in a certain way.

The minister may also make conservation orders to protect listed threatened species or communities, requiring or prohibiting certain actions in Commonwealth areas (div 13 of pt 17). Contravention of a conservation order is an offence.

Permits are required under the Act for certain activities, including whale watching in Commonwealth waters, research or commercial activities in Commonwealth parks or reserves, and activities in Commonwealth areas that may affect listed species or communities. It is an offence to kill, injure, take, trade, keep or move a member of a listed species or community in a Commonwealth area without a permit (div 1, pt 13 of ch 5).

For up-to-date information consult the Department of Environment website which includes extensive material on the operation of the EPBC Act (see Contacts list at the back of this book).