Management of the Listing Process
At [the] national level, the list of threatened species and
ecological communities is a critical and potent document: to a large degree it determines
allocation of conservation funding; it focuses environmental impact assessment
processes on a select group of organisms; and its length and dynamism charts
trends in the state of Australian biodiversity.
The committee heard a range of concerns about the following aspects of
the process for listing threatened species and ecological communities:
- lengthy delays between nomination and listing of species and
- the lists are incomplete, inaccurate and are not reviewed;
- heavy reliance on public nominations;
- problems with listing where there is insufficient data;
- taxonomic bias in the lists;
- duplication and inconsistency between the EPBC Act lists and state/territory
lists (and the IUCN
Red List of Threatened Species);
- lack of emergency listing provisions (noting that they are
proposed to be introduced as part of EPBC Act reform legislation);
- the role of the Threatened Species Scientific Committee (TSSC).
This chapter focusses on the listing processes under the EPBC Act.
However, coordination with state and territory lists is also considered where
relevant. It is also noted that many of the problems with the EPBC Act listing
process are also relevant to state and territory listing processes—such as
taxonomic bias and issues with insufficient data for some species.
Timeliness in the listing process
Many submitters complained of lengthy delays between nomination and
listing of species and communities.
For example, the Save the Bilby Fund described the listing process under the
EPBC Act as 'grindingly slow'.
The Humane Society International (HSI) felt that the long time from the point
of nomination to actual listing was 'frustrating'.
Submitters pointed out that delays in listing can have significant
In particular, as Birdlife Australia observed that 'a failure to list species
can increase the risk that they are not considered at the time of new
HSI were also concerned that while a species is under nomination, the species
can 'continue to decline and their conservation status can become more
Others were worried that delays in listing can mean delays in securing
resources for recovery.
Some submitters also argued that an efficient listing process is important simply
because 'early intervention dramatically improves the likelihood of achieving
The National Parks Australia Council pointed out that:
Timeliness of the listing process compares very unfavourably
with the emphasis on timeliness for the approvals process. Whereas the
department reports in detail on time taken to assess approvals within the tight
timeframes of the [EPBC] Act, there is not even a report on the length of time
it takes to approve a listing of a species.
The committee's own analysis of data provided by the Department of
Sustainability, Environment, Water, Population and Communities (SEWPAC) indicates
that since 2007,
of the 43 species that have been listed or upgraded via the public nomination
process, the average time between the date of nomination and the date of
listing (or change of category) was almost two years. The timing of listing of
ecological communities since 2007 appears also to be around two years.
In answers to the Committee's questions about delays in the listing
process, SEWPAC responded that, when determining whether a species or
ecological community is eligible for listing as threatened under the EPBC Act,
... undertakes a rigorous scientific assessment of the species
or ecological community's threat status against criteria set out under the EPBC
Act. Timeframes for the completion of assessments are recommended by the
Threatened Species Scientific Committee and determined by the Minister.
Timeframes vary depending on the complexity of each nomination. When
comprehensive information is available, the assessment may be completed as
quickly as within four months. The most complex nominations tend to be those
relating to ecological communities. Assessment timeframes for these nominations
can take up to two years depending on the quality of information and data
SEWPAC further explained that the TSSC can request that the Minister
extend the assessment period, explaining that:
Extension requests can be due to a number of reasons, for
example if the Threatened Species Scientific Committee is waiting on additional
studies or data to better inform its assessment. Section 194P of the EPBC Act
requires that the total length of all extensions of the assessment completion
time must not be longer than five years. The Minister can also extend the
decision time after receiving the advice from the Threatened Species Scientific
Committee, to enable further information to be considered.
The lengthy listing process led to calls for 'emergency listing'
As outlined in Chapter 1, in March 2012, the Environment and Communications
Legislation Committee reported on the Environment Protection and
Biodiversity Conservation Amendment (Emergency Listings) Bill 2011 (Emergency
Listings Bill). During that inquiry, the committee heard support for an
emergency listing process and concerns about the delays in the nomination and
The committee gave in principle support to the emergency listing provisions of the
Emergency Listings Bill and noted the government's intent to introduce similar
legislation into the Parliament.
The Hawke review also recommended that the Environment Minister be given the
power to make emergency listings of threatened species and ecological
communities under certain circumstances.
During this inquiry, SEWPAC reiterated its intention to implement
emergency listing provisions for threatened species and ecological communities
'to allow for faster protection of species and ecological communities that are
under immediate and substantial threat'.
However, at the time of drafting this report, this legislation had not
yet been introduced. The submission from SEWPAC states that 'amendments to the
EPBC Act are proposed to be introduced to Parliament in 2013'.
However, in the Federal Budget in May 2013, the government announced that it
made a decision to delay the introduction of relevant amendments to the EPBC
Act until 1 July 2014.
The TSSC also confirmed its support for the option of 'emergency
listing' during this inquiry.
Vulnerable ecological communities
Several submissions noted that, under the EPBC Act, only ecological
communities listed as critically endangered or endangered receive full
protection as matters of national environmental significance. Several
submissions expressed support for the Hawke recommendation that the EPBC Act be
extended to protect vulnerable ecological communities – noting that,
otherwise, there was little point in nominating ecological communities for
listing as vulnerable.
The government has agreed to amend the EPBC Act to protect ecological
communities in the vulnerable category,
but, again, at the time of writing, legislation had yet to be introduced to
implement the Hawke recommendations.
Accuracy and review of lists
The committee received evidence lamenting the fact that the EPBC lists
are out-of-date, incomplete, inaccurate and not reviewed on a regular basis.
The Australian Wildlife Conservancy submitted that:
The fact that the [EPBC] lists are consistently out of date
and do not reflect the latest, widely available scientific knowledge represents
an embarrassing failure of public policy and administration.
The World Wide Fund for Nature-Australia (WWF-Australia) suggested that:
The list of species and ecosystems actually threatened is
likely to be much larger than the official EPBC Act lists due to process
delays, lack of reviews of the existing lists... but also lack of knowledge.
The consequences of having out-of-date lists were also highlighted by
several witnesses. For example, Dr Andrew Burbidge pointed out that:
Having the list as out-of-date as it is has serious
ramifications for a whole range of issues. It is very unhelpful to industries
that are doing environmental impact assessment planning, because they are
surveying for species that probably should not be on the list and they are not
surveying for species that should be on the list.
The committee heard that a recent expert-driven review of the current
status of Australian bird species identified many inaccuracies in the EPBC
The review compared the current status of Australian bird species according to
IUCN Red List
criteria. As Professor John Woinarski summarised:
That assessment identified 54 bird species and subspecies
that merited listing as threatened but were not listed as threatened under the
EPBC Act; 22 bird species and subspecies that were listed under the EPBC Act
that no longer (if ever) merited listing; and 88 bird species that were listed
under EPBC Act and were found to still merit listing (although only 45 of these
were assigned the same conservation status category). This is a pronounced
mis-match, and strongly indicates that conservation attention is not being directed
towards the species most in need of it.
One of the authors of this review, Professor Stephen Garnett from
Birdlife Australia, told the committee that the review 'showed a much more
dismal picture' for Australian birds than you would get from the EPBC Act
...the EPBC lists for birds does not reflect current thinking
about their threat status, and, of course, if they are not on the list they do
not trigger the EPBC Act and they do not get funding, so extinction risk is
higher. But there are also quite a few species on the list that should not be.
Of course, they are the more common ones and so are more likely to be picked up
in surveys and delay development, so waste a great deal of departmental and
developer resources for no conservation benefit.
It seems a similar problem exists for mammals. Dr Burbidge submitted
that he had reviewed the listed Australian mammals in the process of drafting
'The Action Plan for Australian Mammals 2012'. He informed the committee that
'initial evaluations of the status of Australian mammals indicate that
approximately 80 changes to mammal listings are required'. 
Dr Burbidge remarked that:
The current list of threatened mammals under the EPBC Act was
inherited from the Endangered Species Protection Act 1992, which in turn
inherited the list developed by the then Ministerial Council in the 1980s. It
has never been reviewed.
For these reasons, many submissions proposed that systematic reviews of
the EPBC Act lists should be conducted. WWF-Australia and others suggested
these reviews could be conducted by taxonomic groups—such as birds, mammals,
reptiles, amphibians, fish and so on.
For example, Professor Woinarski agreed that:
The national threatened species list should be overhauled at
regular intervals, with such overhaul achieved most effectively by a series of
rolling systematic reviews of major components of Australian biodiversity.
Similarly, Associate Professor Mark Lintermans proposed that:
Mandated formal reviews of conservation status at regular
intervals would ensure that species are in appropriate categories, and such
formal reviews should be enough evidence for recategorisation to occur (i.e. a
formal renomination is not required).
The committee notes that some states undertake regular reviews to update
their lists. For example, the Northern Territory (NT) government advised that
their threatened species list is formally reviewed every 4–6 years, with each
review taking at least a year to complete.
In response to questions on notice about the accuracy of the EPBC Act
lists and whether there is any system of regular reviews of the lists, SEWPAC
outlined the reactive nature of listing process:
Listings or reviews of threatened species and communities are
driven by receipt of nominations...Any person may submit a nomination.
Dependent upon available resources existing threatened
species and ecological communities listings under the EPBC Act are reviewed if
new information, such as significant changes in threat status, distribution,
abundance or taxonomic changes is received about a particular item in a
nomination or from states and territories.
Reviews are triggered if new information is provided on
The TSSC also acknowledged the fact that the EPBC threatened species list
has not been reviewed:
Changes to the list currently occur mostly through state
partnerships and nominations by the public, however the list has not been
systematically overhauled for more than a decade, largely due to a lack of
The capacity and resourcing of the TSSC to undertake such reviews is
considered further later in this chapter in the discussion on the role of the
Another mechanism suggested to ensure the EPBC lists are kept up to date
was the reinstatement of section 185 of the EPBC Act (which was removed in amendments
to the EPBC Act in 2006).
That section imposed a statutory obligation on the minister to 'take all
reasonably practical steps' to keep the lists up to date.
In recommending the reinstatement of section 185, the Australian
Wildlife Conservancy argued that 'there is no valid reason why the lists of
threatened species and ecological communities cannot be kept up to date'.
HSI similarly expressed concern about the removal of section 185,
arguing that since its removal 'all impetus for relatively quick assessments
and listings of larger numbers of threatened ecological communities was lost'.
The submission from SEWPAC disagreed with this assessment:
In recent years, the Department has accelerated listing of
threatened ecological communities at a landscape or ecosystems scale and this
provides additional protection for component species...There are now 59
threatened ecological communities listed under the EPBC Act, most of which are
part of the strategic move to a landscape or systems‑level protection for
many threatened species, including the first ever marine community (Giant Kelp
SEWPAC further submitted that, since amendments to the EPBC Act in 2006,
25 ecological communities have been listed, compared to only 14 listings in the
previous seven years since the start of the EPBC Act in 2000.
Public nomination process
While public participation in the listing process was generally supported,
the heavy reliance on public nominations for listing threatened species and
communities was often criticised as a reactive, 'ad hoc' approach.
It was pointed out that:
...listing depends on someone submitting an application. Often
the professionals with the requisite knowledge to complete the application are
so overwhelmed they don't have the time to do it, so an endangered species can
remain unlisted for years.
Associate Professor Lintermans described the current listing approach as
'passive, rather than a strategic approach':
...each nomination is considered in isolation, and without
formal nominations to recategorise a species they may remain in their existing
threat category for many years, even though expert opinion suggest their
conservation status should be amended. For example, the National Trout Cod
Recovery Team assessed Trout cod as meeting the criteria for Critically
Endangered in the mid-2000s, but the species is still only listed as
Dr Andrew Burbidge observed that:
The process for nominating and evaluating species is highly
bureaucratic. The nomination form for proposing a species for the list puts a
lot of people off. Once they look at it they find it far too detailed and too
complicated to fill in the answers.
Others claimed that nominations for ecological communities are even more
Too few public nominations for ecological communities are
received. Nomination of an ecological community is generally beyond the
capacity and knowledge of most nongovernment organisations...
For this reason, it was suggested that the 'onus of proof' should be
shifted off the public:
Public nominations should be accepted even if the public
individual or group cannot find all the information for the nomination. The
onus to assess the status of the ecological community should be on DSEWPAC once
it is nominated, to consult relevant experts and literature rather than placing
the onus on the nominating public as at present.
HSI, which itself has been responsible for a significant proportion of
nominations, lamented the fact that the lists are primarily updated through a
public nomination system:
...the nominations process relies on the public to put forward
nominations. The problem with that is that it relies on the public and
volunteers generally or organisation like ourselves to prepare the nominations,
which take some time to prepare and a great deal of resources, particularly if
you want to put in a properly researched and substantive nomination.
HSI concluded that:
The reality is that this process will take decades before a comprehensive
representation of all MNES [matters of national environmental significance] can
be achieved. It is not good conservation.
In the same vein, Associate Professor Lintermans submitted:
The current approach to listing threatened species under the
EPBC Act relies on assessment of nominations; a passive rather than a strategic
approach. ...The passive approach to listing also means that many species that
are eligible for listing remain unlisted. It is not a trivial task to gather
the information required for a nomination, and many interested people do not
have the time or support from employers to prepare nominations.
The difficulties of making a nomination was acknowledged by the TSSC:
...the EPBC nomination process is technically demanding and
community groups, especially Indigenous peoples, report that they feel
disenfranchised as has been pointed out by the Indigenous Advisory Committee.
At a recent joint meeting, representatives of the Indigenous Advisory Committee
and the TSSC asked DSEWPaC staff to investigate a less-complicated ‘Expression
of Interest’ nomination process for community groups, but the problem remains
of resourcing the development of evidence required to assess the case for
The committee notes that, in addition to public nominations, it is
possible for the TSSC itself to nominate species and ecological communities for
inclusion on the proposed priority assessment list.
Indeed, according to information provided by SEWPAC, the TSSC has nominated 11
potential threatened species since 2007.
There were also complaints about the 'priority assessment' process. The
listing process was refined in 2006 to introduce the ability for the minister
to determine 'conservation themes' and a dedicated assessment period, and the
introduction of the 'proposed priority assessment list' (PPAL) and the
'finalised priority assessment list' (FPAL). HSI was critical of these
...you are by no means guaranteed to be considered by the Threatened
Species Scientific Committee; it has to first get onto the FPAL, the Finalised
Priority Assessment List, to then be considered by the Threatened Species
Scientific Committee. We feel that this is a barrier to a number of species
being listed and therefore their conservation status being improved. Therefore,
those amendments should be repealed.
Mr Jeremy Tager agreed:
Each year they consider a number of species for priority
listing. This is effectively a pre‑listing screening process....It is
clear, if not quantified, that a large number of species which could or should
be considered for listing aren't.
The committee notes the explanation from the then Department of the
Environment and Heritage at the time of the 2006 amendments that the amendments
were 'designed to address the problems being experienced as a result of the ad
hoc nature of the current process':
At the moment, nominations are dealt with as they are
submitted, regardless of merit and regardless of whether other species should
be accorded greater priority. This means valuable resources...may be tied up
dealing with nominations that have little merit, or do not deserve priority
attention or, if successful, would result in little conservation benefit. That
is neither a sensible nor optimal way to develop a list of our most threatened
and priceless species.
The department described the PPAL/FPAL process as a strategic framework
'to ensure that efforts are focused on the most important issues, and that the
'highest priority tasks are undertaken in the context of a well-planned and
manageable work programme'.
In response to questioning during this inquiry as to how many species
get rejected during the PPAL/FPAL process, representatives from SEWPAC
It is difficult to give an overarching figure, because it
will vary from year to year...Some years most of them will go through and be
listed on the priority assessment list, and some years it may be half to
two-thirds. It really does vary depending on the lists and the quality of the
nominations that we get. There is a bit of a filtering process, so, in the
first instance, the regulations outline what those nominations need to have in
them, and some of them do not need those regulation checks. We also get
frivolous ones and so on, and some those will get culled out through the
In answers to questions on notice, the department advised:
We have received 116 nominations for species since the
amendments to the act in 2007. Twenty-six of these nominations have been
rejected. Of these 26: seven failed the regulations under the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) and were
considered ineligible; 13 were not considered a priority by the Threatened
Species Scientific Committee; and six were rejected due to insufficient data.
It was suggested that an even more systematic approach to listing is
required. For example, HSI suggested that the Commonwealth should review all
possible candidates for listing and provide the resources to achieve this within
Associate Professor Lintermans similarly suggested that strategic reviews might
also help overcome the problem of reliance on public nominations:
An improvement on current arrangements would be the
commissioning of strategic or overarching national reviews of the conservation
status of particular groups. This would provide an opportunity to also assess
relative priorities for conservation or recovery action between species in a
group, as well as identifying species or communities that are near-threatened.
Such strategic overviews should be conducted at least every 10 years. There has
not been an overview of the conservation status of Australian freshwater fish
since Wager and Jackson (1993) prepared their action plan, and one is sorely
Sufficient data for listing
The committee also received evidence expressing concern about situations
where potentially threatened species are not being considering for listing
because of a lack of information.
For example, Professor Woinarski observed:
The reliability, utility and comprehensiveness of threatened
species lists are much influenced by the level of information available for
species, and the manner in which constraints on that information level is
considered. Regrettably, there is relatively little (relevant) information
available for most Australian plant and animal species: we know little of their
total population size, or the rate of their decline (or increase); in many
cases, species remain undiscovered or unnamed.
Similarly, the Nature Conservation Council of New South Wales (NSW)
expressed concern that:
The data required to make a proper assessment of whether a
species or population should be listed often does not exist, in large part due
to consistent under-funding of relevant State agencies.
Serious under-resourcing means that even when limited data
indicates that further research is required which would likely support the
listing or upgrading of threated flora and fauna, the required work is rarely
HSI told the committee it had encountered the problem of lack of data
during the nomination process for a number of shark species:
HSI has been told that 'insufficient data' is available on
the population size or to quantify any decline to enable further assessment and
listing under the EPBC Act, despite all international indicators suggesting the
same shark species are in decline...With the Threatened Species Scientific
Committee failing to even consider species without detailed local information,
for many species it may be too late by the time enough data has been obtained...
Noting that 'lack of information should not by default preclude
potentially threatened species from being listed', Professor Woinarski
suggested that the Western Australian process for listing 'short-range
endemics' may provide an appropriate model for the protection of poorly-known
species at a national level under the EPBC Act. That is:
...a poorly-known, restricted-range species is protected until
and unless it can be proven to be more common or widespread than indicated by
the current knowledge base.
Some suggested that a new category of 'data deficient' be added to the
EPBC lists, as per the IUCN Red List.
However, Professor Woinarski observed that most Australia species may qualify
as data deficient, which would be an 'unhelpful outcome'.
However, others argued that a 'data deficient' list could 'increase awareness
and encourage people to gather and report information on such species'.
Another proposal was to improve the application of the precautionary
principle, as set out in subsection 391(2) of the EPBC Act:
We also suggest better application of the precautionary
principle in the assessment of nominations as considerable burden of proof
problems can exist with providing evidence of species decline due to an absence
of data...The fact that nobody seems to know suggests the species has declined
and an absence of data does not mean the species is not under threat, only that
conclusive proof cannot be provided...the precautionary principle is not being
applied where a strong likelihood of decline appears evident.
Professor Woinarski agreed:
While the EPBC Act asserts a commitment to the precautionary
principle, the mechanism to apply this principle for the consideration of the
threatened status of poorly-known species remains unresolved. In such cases,
the onus of proof may be poorly placed, and species threatened with extinction
may be ineligible for listing because of neglect, ignorance or lack of
However, the NSW Council of Freshwater Anglers disagreed with the use of
the precautionary principle, instead recommended that:
...where lack of scientific certainty exists in respect of
serious concerns as whether a species is likely to undergo decline or as to key
threatening process or similar issues, that Scientific Committees should have
power to recommend key research programmes, and have a budget to commission
urgent critical research.
In response to questions about the application of the precautionary
principle where there is insufficient data on a particular species, the Chair
of the TSSC told the committee that it is:
...very concerned about the issue of data deficiency, as is the
minister. In fact, at our next meeting we are having a briefing from a legal
expert about the options under the present legislation. When the committee
advises the minister that a species that has been proposed for listing is data
deficient, it takes a risk assessment approach and advises the minister of
whether or not it thinks there are serious concerns.
It was also observed that there are other responses available where
listing is not possible. SEWPAC pointed out that:
The Commonwealth can bring a range of different tools to bear
on those problems of providing protection for threatened species, vulnerable
species or even a species that have not yet or do not necessarily require
listings, the great mass of biodiversity.
By way of example, although the snubfish dolphin was rejected for
possible listing in 2011 on the basis of insufficient data,
this had triggered a range of work, including the funding of research under the National Environmental Research Program and the Australian
Marine Mammal Grants Program 'to try to fill those gaps as quickly as
It was also pointed out that, in many cases, a precautionary approach to
data deficiency would be impractical. For example, Professor Walker from the
TSSC observed that many invertebrates would be considered to be data deficient,
and if the precautionary principle were invoked, this would result in an
immense number of species potentially needing to be declared protected.
Professor Walker also argued that:
...many of those species that are data deficient are likely to
remain so forever. There are certain kinds of species—animals and plants—in
fresh water, marine and terrestrial habitats for which we are never likely to
have hard data. So we must come to grips with this notion of data deficiency
and develop better means for dealing with sparse datasets.
In answers to question on notice, SEWPAC advised that since 2007, six
threatened species nominations (out of 116 nomination) have been rejected as
they were considered to be 'data deficient'.
At least one of these–Sphyrna mokarran (great hammerhead)–has
subsequently been renominated and is now under assessment.
SEWPAC noted that:
If a lack of information was the reason for a decision not to
include a species or ecological community on a list the nominator was typically
advised of that fact and it was noted that a new nomination may be submitted if
new data becomes available.
Finally, SEWPAC advised that:
The Threatened Species Scientific Committee (the Committee)
is aware of the issues around data deficiency when considering the eligibility
of species or ecological communities as threatened. The Committee’s current
approach is that, when advising the minister that a species or ecological
community is not eligible for listing because of a lack of information or data,
the Committee takes a risk assessment approach. It advises the minister as to
whether or not it thinks there are concerns, such as the existence of a threat
that is still operating on a species. If there are concerns, the Committee may
make suggestions on how the data gaps that prevent it meeting listing criteria
can potentially be filled.
In this context, the committee notes the need for increased surveys,
monitoring and research relating to threatened species and ecological
communities in Australia. This is discussed further in Chapter 6.
Taxonomic bias in the lists
Several submissions were also concerned about 'taxonomic bias' in
threatened species lists: that is, the lists are dominated by better-known groups
such as birds, mammals, amphibians and trees. On the other hand, plants, fish
and invertebrates are under-represented.
Mr Andrew Heaver championed the cause of invertebrates in his submission:
....invertebrate species are disproportionately under-represented
on the threatened species lists. The Australian Museum suggests that insects
account for approximately 75% of all animal species...yet they do not form a
similar proportion of listed animal species: of animals recognised as
“Endangered” under Commonwealth legislation, 126 are vertebrates (mammals,
birds, reptiles, amphibians and fish) and only 17 are “other” (invertebrate)
Mr Heaver continued:
Although some invertebrate species are incredibly common and
widespread, many are likely to be subject to similar threats as vertebrates. It
is therefore likely that many Australian invertebrate species are threatened in
a real sense, but not a legal sense (and therefore unprotected).
It was suggested that lack of data compounds this taxonomic bias:
A clear challenge is that listing processes (understandably)
require a certain a degree of information to be available on a species, its
distribution and ecology, population trends, etc. For many deserving species
this is going to be an insurmountable challenge, especially given that many
unique invertebrate life-forms have not yet been given a species name and
described scientifically, let alone had their ecology, distribution and
population trends evaluated. Invertebrate biodiversity is so substantial that it
is exceedingly improbable that such information will ever be available for all
known invertebrate species in Australia.
The TSSC acknowledged this problem:
...like most other national and international threatened
species lists, the EPBC list of threatened species is biased in favour of
'iconic' species such as mammals, birds, reptiles and flowering plants, while
less familiar species, like invertebrate animals and non-flowering plants, are
rarely considered in the current listing process. These 'infrastructural'
species have a vital role in supporting ecological communities and ecosystems,
and are a vital component of 'biodiversity'.
And as discussed earlier, the TSSC noted that:
...invertebrate animals are 95 percent of all animal
biodiversity, but very few invertebrate are listed as threatened species, even
though it is likely that many species would qualify for listing if nominated.
However, the committee notes that invertebrates and other lesser known
species are likely to be better covered by the increased use of ecological communities'
listings in recent years.
In relation to marine species, the Australian Fisheries Management
Authority (AFMA) told the inquiry that the existing threatened species listing
process under the EPBC Act do not effectively account for the biological
characteristics of marine species. AFMA told the committee that threatened
species provisions of the EPBC Act:
...reflect the historic focus on threats to high order
terrestrial species such as mammals, and are less appropriate for marine fish
due to clear biological and reproductive differences.
AFMA continued that:
This issue is acknowledged in the EPBC Act itself under s180,
which provides for the making of regulations that specify criteria for native
species of marine fish....While the EPBC Act clearly provides for the development
of specific assessment criteria to direct the nomination and assessment process
for the listing of marine fish this has not occurred in the 13 years since the
legislation was enacted.
AFMA noted that, in the absence of regulations under s180, it has relied
on the Commonwealth Fisheries Harvest Strategy Policy (HSP) released in 2007,
which states that:
...if a stock biomass is at or below a biomass limit (BLIM),
the default for which is 20 per cent of the unfished biomass, the risk to that
stock is considered unacceptably high, and targeted fishing ceases. While a
stock is above BLIM there is no expectation that the species would be added to
the list of threatened species. It would be appropriate to build this policy
AFMA concluded that there is a 'need for biologically appropriate
criteria to be developed and implemented to ensure, effective and efficient
application of the listing process to marine fish'. 
The committee notes this issue was considered by the Hawke review, which
recommended that the Commonwealth government integrate the HSP framework with
the threatened species listing process for marine fish.
While the government agreed in principle to this recommendation, it felt that
the link between the HSP and the threatened species listing process should
remain a policy matter and not be legislative. However, it would consider
developing guidelines as part of the review of the HSP in 2012. The committee
notes that this review is currently underway and is expected to be completed in
early to mid-2013.
Duplication and inconsistency with states
Several submissions highlighted the need to reduce inconsistencies
between the national EPBC Act list of threatened species and ecological
communities and the various state and territory lists.
As the National Farmers' Federation (NFF) submitted:
One of the major issues confronting land managers is the
confusion that abounds between threatened species and ecological communities at
the state and territory level compared to the federal jurisdictional level. For
example, while an individual species or ecological community may be listed on
both the state/territory and federal lists, these are very likely to have
different scientific definitions, different geographic coverage and different
thresholds that determines if a landholders needs to refer and subsequently
apply for an approval under the relevant jurisdictional legislation.
Ms Wellbelove from HSI agreed:
...you have the federal system but each state also lists
species differently. In our view, that does deliver a complicated system. Some
species are listed in some states but not others. Our preferred approach is
that everything on the federal list should also be listed at the state level to
ensure there is connectivity.
It is noted that the Hawke review recommended that the Commonwealth,
state and territory governments move to a single national list of threatened
species, including marine species and ecological communities, through
accreditation of state and territory processes for listing endemic species.
The EPBC Act reforms, as announced in August 2011, propose to establish 'a
single national list of threatened species and ecological communities to reduce
inconsistencies between jurisdictions'.
During this inquiry, there was considerable support for this sort of approach.
For example, the NFF felt that a national list 'would solve much of the
existing confusion for landholders and others seeking to comply with their
However, it was also pointed out that the problem was not just one of
multiple and inconsistent lists of threatened species, but also multiple and
inconsistent criteria and processes for listing, as well as different
approaches to protection and management across jurisdictions.
For example, Dr Peter Kyne opined that:
Listing processes, and in particular threatened species
categories and criteria need to be consistent between state, territory and Commonwealth
legislation to ensure a consistent approach, consistent listings, and
As Mr Brendan Sydes from ANEDO told the committee, it is important to
compare 'apples with apples' in terms of what is listed in each jurisdiction.
The NFF agreed that while it supported one consolidated national list:
...it is not just the one list; it is the issue of different
geographic coverage for the same species, the issue of different thresholds for
the same species...and ...the difference in how they are described scientifically.
However, as Dr Jasmyn Lynch remarked:
Achieving consistency in the process and protocols for
listing of threatened species and ecosystems, nevertheless, is not
straightforward. Currently, although most Australian authorities claim to use
the IUCN Red List categories and criteria for extinction risk to categorise
taxa at risk of extinction, the various jurisdictions are inconsistent and
variable in applying the categories and criteria, and have inconsistent
approaches to data deficiency, transparency and accountability.
The committee heard that cooperative arrangements have been entered into
between the Commonwealth and state governments in recent years in an attempt to
address inconsistencies between lists and listing processes.
In its submission, SEWPAC stated that:
...in recent years the Department has developed partnership
agreements with most jurisdictions to streamline EPBC Act listing of species
that have already been assessed by state departments or scientific committees.
For example, the Queensland Minister for Environment and Heritage
Protection submitted that:
In 2010, the Commonwealth and Queensland governments signed a
Memorandum of Understanding (MOU) to address the misalignment of threatened
species lists. The MOU provides for more effective communication, a
coordination of listings assessments and facilitates discussion on a single
Similarly, the NT Government noted that:
Under an MOU with the Australian Government, the NT notifies
SEWPaC of any changes in listing of species endemic to the NT and sends
supporting information for each change. This may then be considered for change in
the national threatened species list under the EPBC Act.
SEWPAC elaborated in answers to questions on notice that the MOUs
between the Commonwealth and 'several state and territories' addressed:
Reducing duplication of effort with species assessments;
Strengthening intergovernmental cooperation between scientific
More efficient sharing of information, with a partnership
approach to protecting the environment and species conservation.
The committee is aware that the SEWPAC Annual Report 2011-12
explained that under the agreements:
...species that are endemic to a particular state or territory
are first assessed in the relevant jurisdiction, before national assessment by
the TSSC for their eligibility for listing under the EPBC Act. Assessments for
103 species assessed through these partnership agreements were completed in
SEWPAC further advised that the government is committed to address 'the
need to make the lists of all Australian jurisdictions centrally available'.
The government is consulting with state and territory
governments regarding the introduction of a harmonised national list and ways
to tackle existing misalignment of threatened species lists. It is anticipated
that this work will also develop national standards that may eliminate
differences, but not all, in species profiles and listing advices.
The Chair of the TSSC recognised that aligning the lists is a 'very
sensible and appropriate thing to do':
...it is extremely important to align those lists as much as possible.
It is extremely confusing to the general public to have misaligned lists, and I
think misalignment reduces the credibility of the listing process...a great deal
of care and attention is being given to harmonising the standards across
jurisdictions in Australia. I have no evidence that that is going to lead to
any lowering of standards.
However, Dr Lynch expressed concern that:
Suggestions that a single national list would suffice, rather
than the current system of listings at state and national level, disregards the
large size and diverse environments of this country and the consequent
potential variability across the ranges of taxa in their ecology, genetic
diversity and abundance. It also raises the complication of how to deal with
taxa that are threatened in only part of their range rather than at the
The Chair of the TSSC acknowledged this problem:
It will be challenging regarding some widely distributed
species, which may of course have a different status when listed on the state
scale than when listed on the nation scale.
However, representatives of SEWPAC told the committee that there has
been considerable progress 'behind the scenes' on this issue of inconsistencies
in the lists and listing processes:
We are working in the first instance on some of the broad
parameters around what we think should be in there—some of the key principles.
They are things such as listing criteria and the common adoption of things such
as the IUCN criteria ... We think that work is progressing well. Giving effect to
it down the track will require legislative reform, probably in all
jurisdictions. But it is probably worthwhile stating that we have been doing a
lot of work behind the scenes for quite some years towards getting more
consistency in our lists.
However, Professor Helene Marsh, Chair of the TSSC, also advised that
sometimes there are good reasons for differences between the EPBC Act list and
state or territory lists:
...given that the [EPBC] Act is really focusing on matters of
national environmental significance, we have to think about what is appropriate
for the Commonwealth to be doing and what is appropriate to be done in the
She also told the committee that it may often be appropriate for a
species to only be listed on a state list rather than a national list. She
pointed out that, for example, the dugong has:
...a very broad range across Northern Australia. It is not
listed federally and it is listed in Queensland as vulnerable. I think both of
those listings are correct. There are quite secure populations in Western
Australia, whereas the situation on the urban coast of Queensland is very
In this context, ANEDO pointed out that one strength of NSW threatened
species legislation is that a population of a species may be listed 'if
it is facing a very high risk of extinction in NSW in the near future'.
While there is no direct power to list populations under the EPBC Act,
the committee notes that, under the EPBC Act, the definition of species
includes sub-species and distinct populations.
In order to list a population under the EPBC Act, the minister can make a
determination under section 517 of the EPBC Act that a distinct population of
biological entities is a species for the purposes of the EPBC Act.
The problem of how to deal with species that may have regional
populations that are declining rapidly, was apparent during this committee's
recent inquiry into koalas.
In the end, the minister made a determination under section 517 of the EPBC Act
that the combined koala populations of Queensland, New South Wales and the
Australian Capital Territory were a 'species' for the purposes of the EPBC Act.
The Chair of the TSSC described the EPBC Act as a 'bit clunky' in this
...we could not under the [EPBC] Act justify listing the whole
species throughout its range as vulnerable, so listing it by its most
genetically valuable areas of greatest conservation concern was going to trigger
a more powerful response...the minister had to establish a separate 'species'
under the EPBC Act in order to list the koala....maybe some reform to the [EPBC]
Act would be appropriate so that a less-clunky mechanism could be used to
achieve the same result.
In response to questioning on whether the EPBC Act needs more
granularity in this area, departmental representatives told the committee that they
were not considering any amendments to allow for the listing of subpopulations
...the fundamental construct of the EPBC Act...is the
differentiation between Commonwealth responsibilities for matters of national
significance compared to issues that the states may be able to deal with under
their legislation. If we potentially start to unpick that then we start to
unravel a bit of the underlying premise of the whole act. I guess the koala
example is one that indicates that the provision that is already in the act
does still allow for the listing of some populations of species, even if it is
a clunky approach to doing so.
IUCN Red List
Several submissions also compared the EPBC list to the IUCN Red List of
However, it was observed that the EPBC Act list contains:
...quite different species to the lists of Australian threatened
species developed under the guidelines of the International Union for the Conservation
of Nature. These, refined over a 50 year period and applied globally, differ little
from the criteria used for EPBC listing. Some species that merit listing under
these criteria aren’t listed under the EPBC Act; some species listed under the
EPBC Act don’t merit listing under the criteria. The difference would appear to
be due to administrative inefficiency.
Birdlife Australia submitted that, in the preparation of environmental
accounts, the Australian Bureau of Statistics 'has had to use the IUCN Red List
data because the EPBC Act data is too outdated'.
To resolve listing delays, it was suggested that state and Commonwealth
threatened species lists should adopt the threat status of species on the IUCN
Red List of Endangered Species 'rather than duplicating the expensive and slow
However, when asked to compare the process for listing under the EPBC
Act to the IUCN listing process, Professor Stephen Garnett from Birdlife
Australia observed that there needs to be a 'greater level of caution' for EPBC
....the EPBC process is more rigorous...it has to be, because of
the legal implications...IUCN listing can take a more precautionary approach, but
I think the two processes can be aligned a lot more closely. There is not that
much difference between them in the information that is made available for the
IUCN listing and the EPBC process.
The committee notes that the criteria for listing under the EPBC Act are
broadly similar to the IUCN criteria. The Chair of the TSSC told the committee:
This listing process is based on clear, explicit, objective
criteria, which are set out in the act and which in turn are comparable to the
internationally established criteria used by the International Union for
Conservation of Nature. A species can meet any one of five of these
internationally recognised criteria to be eligible for listing as threatened.
SEWPAC told the committee that the TSSC is made aware of the
conservation status of species on the IUCN list that are nominated for
assessment under the EPBC Act. However, SEPWAC pointed out that:
...although the threatened categories and criteria under the
EPBC Act are similar to those used by the IUCN, the scope of both assessments
is very different: the EPBC Act prioritises species at risk in the Australian
environment, whereas the IUCN prioritises species that are globally at risk.
Professor Stephen Garnett pointed out that the IUCN list has a category
of 'near-threatened' – for species that are not currently vulnerable but 'that
are likely to become vulnerable if actions continue'.
The committee notes that the category of 'vulnerable' in the EPBC Act covers
species facing a high risk of extinction in the wild.
Under the IUCN criteria, 'near threatened' species are those that do not
qualify for listing as critically endangered, endangered or vulnerable, but are
likely to qualify for a threatened category in the near future.
Professor Garnett suggested that including a 'near threatened' category
in the EPBC list could be 'very helpful' and 'useful innovation' as it gives
some advance warning of potential problems for a species:
Nationally, we see greater scope for NT [Near Threatened]
within the EPBC Act as a flag for potential developments, particularly for
sites where development could push taxa from NT into threatened categories if
conducted inappropriately. Thus the presence of NT taxa at a site would not
preclude development but would be accounted for in any management.
The committee notes that there is a 'near threatened' category under some
state legislation, such as the Queensland Nature Conservation Act 1992.
However, the committee further notes that the Hawke review rejected the
addition of a 'near threatened' category to the EPBC Act, reasoning that it 'is
not likely to provide significant conservation outcomes'.
The role of the Threatened Species
The TSSC is a statutory committee established under section 502 of the
EPBC Act. The TSSC has a number of functions set out in the EPBC Act including
- advise the minister in relation to recovery plans, threat
abatement plans and approved conservation advice;
- advise the minister (on the minister's request or on the TSSC's
initiative) on the amendment and updating of the lists for threatened species,
threatened ecological communities, and key threatening processes; and
advise the minister, at his or her request, on matters relating
to the administration of the EPBC Act.
In performing its listing functions, the TSSC may seek expert advice as
the TSSC considers appropriate.
The current Chair of the TSSC, Professor Helene Marsh, told the
committee that the TSSC is:
...a group of 10 independent experts appointed by the minister
to provide advice about conservation matters defined in the EPBC Act. The scope
of our membership covers many disciplines, and our expertise is deliberately
broad, but we have common expertise in conservation biology, which enables us
to provide as comprehensive as possible consideration of all components of
Australia's environment and biodiversity.
The importance of the independence of the TSSC was emphasised in many
However, several submitters suggested that the TSSC's resourcing should be
increased and that it should be better supported in its role.
The Invasive Species Council went so far as to suggest that the TSSC
should be a 'statutory authority with power to make determinative listing decisions
rather than simply advising the Minister'.
The Australasian Bat Society queried whether the TSSC, which is
'relatively small and voluntary', should be better resourced given its
Similarly, Mr Jeremy Tager expressed concern in his submission that:
The Threatened Species Committee, because it is
under-resourced, can only consider a limited number of potential species for
listing...It is clear, if not quantified, that a large number of species which
could or should be considered for listing aren't.
Dr Andrew Burbidge observed that the TSSC was limited in its capacity to
undertake reviews of the EPBC list:
...the voluntary Threatened Species Scientific Committee
members find it difficult to keep up with the current workload generated by
public nominations, let alone undertake comprehensive reviews of the list. Such
reviews need to be commissioned externally and conducted by respected experts
in the particular taxonomic group.
Professor John Woinarski suggested:
As with the IUCN Red List, such threatened species list
reviews should be undertaken or coordinated by relevant experts, rather than
through government (or inter-governmental) processes.
In the same vein, Dr Peter Kyne believed that the TSSC:
...needs to be expanded to cope with the number of EPBC listing
proposals. Instead of a single group, the TSSC should be comprised of several
subcommittees organised around taxa (plants, birds, mammals, fishes etc), which
reports to an overarching TSSC.
The TSSC agreed that many of the problems with the timeliness and
accuracy of the EPBC listing process as outlined in this chapter could be
'efficiently addressed' by the 'formulation of specialist, scientific, expert
working groups'. The TSSC pointed to model provided by the IUCN, which has a
number of Specialist Groups:
....the members of which work pro bono, are charged with the
task of regularly reviewing the status of species in various ecological or
taxonomic groups and developing recommendations for listing as appropriate.
The TSSC suggested that:
In the Australian context, similar groups could additionally
be charged with reviewing Expressions of Interest from the public and
assembling the evidence required for listing nominated species or ecological
communities. We believe that many of our academic colleagues and others with
specialist knowledge would welcome involvement in tasks of this nature on a pro
bono basis, along the lines developed by IUCN.
The committee commends SEWPAC and state and territory governments for
their work in recent years to progressively harmonise the lists of threatened
species across jurisdictions, and supports the continuation of this work. The
committee notes that this is also consistent with recommendations made by the
ANAO, as discussed in the previous chapter, that the national list of
threatened species and ecological communities be aligned with state and
The committee recommends that the Commonwealth, state and territory
governments prioritise their work towards reducing duplication and
inconsistency between the Environment Protection and Biodiversity
Conservation Act 1999 list and state and territory lists of threatened
species and communities, consistent with the aim of achieving a harmonised
national list capable of accommodating regional or geographic listings within
or across individual states. The committee further recommends that the
Commonwealth, state and territory governments work to establish uniform and integrated
processes for the future listing of threatened species and communities.
The committee also recognises the hard work of SEWPAC and the Threatened
Species Scientific Committee (TSSC) in assessing species and communities for listing
under the EPBC Act. Nevertheless, the committee considers that there is room
for improvement. The committee was troubled by the evidence received that the
TSSC is under‑resourced. The committee is also particularly concerned by
the evidence received that the list of threatened species and ecological
communities under the EPBC Act is out-of-date and inaccurate. This evidence is
disturbing given the importance of the lists as a tool for decision-making
under the EPBC Act; for allocating and prioritising government funding; and as
a public indication of the state of Australia's biodiversity.
The committee acknowledges calls for a more strategic, systematic
approach to the listing process. While the committee supports the retention of
the current public nomination process, the committee notes the evidence
received that the nomination process is too detailed, too complicated and maybe
overwhelming for many community groups. The committee therefore welcomes the
TSSC's proposal for a less complicated, 'expressions of interest' process, and
suggests that the department give serious consideration to this proposal.
The committee recommends that the Department of Sustainability,
Environment, Water, Population and Communities investigate a less complicated
'expressions of interest' process for the public to nominate threatened species
and ecological communities for further consideration of their potential to be
fully nominated by expert groups operating on a pro bono basis, as suggested by
the Threatened Species Scientific Committee.
The committee also considers that there is an urgent need for a formal, systematic
review of the current list of threatened species under the EPBC Act. The
committee believes this process could be enhanced by increasing the resourcing
available to the TSSC. In particular, the committee was persuaded by proposals
for the establishment of a series of specialist scientific working groups to
support the work of the TSSC. If necessary, amendments to the EPBC Act should
be made to facilitate this process.
Initially, the primary role of these groups could be to conduct reviews of
the EPBC Act threatened species list by taxonomic groups (such as birds,
mammals, reptiles, amphibians, fish and so on) within five years. A good
starting point would be recently developed action plans—such as the Action Plan
for Australian Mammals and the Action Plan for Australian Birds, as discussed earlier
in this chapter.
The groups could also have an ongoing role to support the TSSC in assessing
public nominations. The committee considers that this increased resourcing
would also help to address the delays in the listing process.
The committee recommends that the Department of Sustainability,
Environment, Water, Population and Communities establish specialist scientific sub-groups
to support the work of the Threatened Species Scientific Committee.
The committee recommends that the Threatened Species Scientific
Committee, and specialist sub-groups, supported by the Department
of Sustainability, Environment, Water, Population and Communities, commence
systematic reviews of the Environment Protection and Biodiversity
Conservation Act 1999 threatened species list, to be undertaken by
taxonomic group, to be completed within the next five years and to continue to
be undertaken at not less than five yearly intervals.
The committee acknowledges concerns that there is insufficient data for
some potentially threatened species which are therefore unable to be considered
for listing. The committee suggests that the TSSC should be given power to
recommend that the minister fund research programs for species or communities
which are found to be ineligible for listing under the EPBC Act due to data
deficiency. Further, the minister should be required to respond to such
The committee recommends that the Environment Protection and
Biodiversity Conservation Act 1999 be amended to give the Threatened
Species Scientific Committee power to recommend that the Environment Minister fund
research programs for species or communities which are found to be ineligible
for listing under the Environment Protection and Biodiversity Conservation
Act 1999 due to data deficiency or geographical location, and that the
minister be required to respond to the Threatened Species Scientific Committee's
In addition, the committee urges the Commonwealth government to fast‑track
the introduction of the proposed emergency listing provisions. These provisions
were recommended by the Hawke review in October 2009 and then again by this
committee in March 2012. However, at the time of writing, legislation to
implement the amendments to the EPBC Act, as recommended by the Hawke review,
still had not been introduced.
The committee recommends that the Commonwealth government introduce into
Parliament the proposed amendments to the Environment Protection and
Biodiversity Conservation Act 1999 relating to 'emergency listing' of
threatened species and communities as a matter of high priority.
The committee acknowledges evidence that the current approach to listing
threatened populations of the EPBC Act is less than ideal, as was demonstrated
by the difficulties in listing of koala populations. Although that listing was
achieved, the committee agrees with evidence that the current process is
'clunky' and could be improved. Again, this would help align the EPBC Act with
legislation in other jurisdictions, such as New South Wales, which allow for
the listing of threatened populations of species.
The committee recommends that the Commonwealth government amend the Environment
Protection and Biodiversity Conservation Act 1999 to allow for the listing
of threatened populations of species in a manner consistent with the
objective of harmonising listings and listing processes with state and
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