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Chapter 5 - Threatened Species and Ecological Communities
Current law
5.1
To date, the Act has been working to ensure the protection of threatened
species and ecological communities throughout the Commonwealth.
5.2
Since the Act has been in operation, nearly 200 species, communities and
processes have been included on the lists of threatened species, ecological
communities and key threatening processes. Over 250 listed threatened species
recovery plans and 50 Ramsar management plans are in place, and over 15,000
wildlife trade permits have been issued.[1]
In any Commonwealth area a permit is required to kill, injure, take, keep or
move a member of a listed threatened species, threatened ecological community,
migratory species or marine species.[2]
Plants and wildlife
5.3
International movement of wildlife and wildlife products is regulated
under part 13A of the Act (except cetaceans which are regulated under
sections 232A and 232B of part 13).[3]
The Act currently regulates the:
- export of Australian native species other than those identified
as exempt;
- export and import of all species that are recognised
internationally as endangered or likely to become so if trade is not strictly
regulated;
-
import of species identified by other countries who are members
of the Convention on International Trade in Endangered Species of Wild Fauna
and Flora (1973) (known as CITES) as requiring international cooperation to
regulate their trade; and
- import of live plants and animals that, if they became
established in Australia, could adversely affect native species or their
habitats.[4]
5.4
Plants or animals included on the list of exempt native specimens do not
require a permit under part 13A of the Act for the export of the native
plant or animal, or a specimen derived from the native plant or animal. If the
plant or animal is not included on this list, then a permit is required before
exportation can take place. Commercial export of regulated wildlife and
wildlife products may occur only where the specimens have been derived from an
approved source (captive breeding program, artificial propagation program,
aquaculture program, wildlife trade management operation, or wildlife
management plan).
5.5
The list of CITES specimens contains all species included in
Appendices I, II and III of the Convention of International Trade in
Endangered Species of Wild Fauna and Flora (1973) (CITES).[5]
Generally, a permit is required to import or export a member of a species that
is included on the list, or a specimen derived from a member of a species on
the list.[6]
5.6
The import of CITES listed specimens for commercial purposes must be
from an approved commercial import program or approved captive source and is
subject to specific conditions (section 303CH) related to the particular
appendix on which the specimen is listed. Specific conditions (section 303CH)
also apply to the commercial export of CITES listed species.[7]
5.7
Regulated wildlife may also be exported or imported if it is for an
eligible non-commercial purpose. Eligible non-commercial purposes include
research, education, exhibition, conservation breeding or propagation, a
household pet, a personal item or for a travelling exhibition.[8]
5.8
The list of specimens suitable for live import regulates the importation
of live plants and animals from outside of Australia.[9]
Specimens fall into one of two categories:
- unregulated specimens; and
- allowable regulated specimens.
5.9
Generally, a wildlife trade permit is required for the importation of
allowable regulated specimens (subsection 303EN(3)). Unregulated specimens
can be imported without a permit. Live specimens that are not included on the
list in either of the categories are prohibited from being imported. However, a
person may apply to the Minister to amend the list of specimens suitable for
live import.
5.10
The Act stipulates that wildlife conservation plans outline the actions
that are required to support the continued survival of the relevant species.
More particularly, they must outline the actions that are necessary to protect
the relevant species, identify habitats of the species and specify the actions
needed to protect those habitats.
Fisheries
5.11
Since the Act's inception, over 120 fisheries have been assessed and
associated accreditations and declarations made by the Commonwealth.[10]
5.12
A 'Commonwealth marine area' is defined in section 24 of the Act.
Marine protected areas are marine areas which are recognised as having
conservation value. The Commonwealth marine environment is a matter of national
environmental significance under the Act. This includes:
- activities taken in a Commonwealth marine area that are likely to
have a significant impact on the environment;[11]
- activities taken outside a Commonwealth marine area that are
likely to have a significant impact on the environment in a Commonwealth marine
area;[12]
and
- fishing in a Commonwealth managed fishery that is likely to have
a significant impact on the environment.[13]
5.13
The Commonwealth marine area is the area between three nautical miles
and 200 nautical miles from the low water mark of the Australian coast or
the edge of the continental shelf (whichever is further).[14]
5.14
Waters less than three nautical miles from the low water mark are
considered state or territory waters. However, even if an action is taken
within state or territory waters a referral must still be made under the Act if
that action may have a significant impact on the environment in Commonwealth
waters. [15]
Rationale for change
5.15
Along with the need to streamline existing processes under current
legislation, it has been recognised that there is a need to address
difficulties in accrediting or recognising fisheries managed under the Torres
Straight Fisheries Act 1984 and the Fisheries Management Act 1992.[16]
5.16
A need to strengthen compliance with and enforcement of the Act has also
been identified, resulting in the various provisions of the bill relating to
the protection of threatened species and ecological communities.[17]
5.17
According to the explanatory memorandum, benefits resulting from the
proposed amendments to the Act’s wildlife trade provisions will include:
- simplified and streamlined wildlife import provisions and less
onerous approval mechanisms for some wildlife exports;
- more effective enforcement through provision for conditions to
continue to apply after expiry of import/export permit; and
- more efficient administration and greater certainty through
resolution of definitional and technical uncertainty and problems.[18]
5.18
According to the explanatory memorandum, benefits resulting from the
proposed amendments to the Act's fisheries provisions will include:
- reduced duplication in regulatory requirements for fisheries
through broader capacity to accredit Australian Government and state and territory
fishery management arrangements;
- clarification of arrangements for assessment and review of
fisheries management accreditations;
- clarification of the application and scope of exemptions; and
- more efficient administration and greater certainty through
resolution of definitional and technical uncertainty and problems.[19]
Changes proposed by the bill
5.19
The bill changes the listing processes for threatened species,
ecological communities and key threatening processes. Broadly, the amendments
aim to 'streamline' the nominations process and, according to the explanatory
memorandum, enable a 'better focus' on protecting threatened species and
ecological communities that are of 'real national importance'.[20]
5.20
The bill inserts a new subdivision AA which amends the process for
listing threatened species, ecological communities and key threatening
processes (at Item 368).
5.21
The key changes to the listing process include the ability for the
Minister to determine conservation themes (new section 194D), and the
dedicated period in which nominations may be submitted (new section 194E).
These could include groups of particular plants, animals and/or geographic
regions. [21]
5.22
In relation to protected species, the following are benefits that are
expected to flow from the changes to the protected species provisions (as
outlined in the explanatory memorandum):
- improved effectiveness of listing procedures and recovery
planning for threatened species and ecological communities by allowing for a
strategic approach, prioritisation of listings and a stronger focus on
conservation outcomes;
- provision for listing of commercially fished species with reduced
impact on existing export fisheries;
- simplification of cetacean permit provisions resulting in greater
consistency in regulatory requirements and reduced timeframes for
decision-making;
- provision for non-disclosure of sensitive information in recovery
documents that may jeopardise the survival of a species;
- streamlined reporting requirements for fisheries impacting on
protected species; and
- more efficient administration and greater certainty through
resolution of definitional and technical uncertainty and problems.[22]
State and territory lists
5.23
At Item 359, the bill repeals section 185 of the Act. The
repeal of section 185 removes the requirement for the Scientific Committee
to assess the threatened ecological communities listed on the state and territory
lists gazetted in November 2001.
5.24
The bill repeals the current public nomination process provided for in
section 191 of the Act and replaces it with a new annual process for
thematic nominations (new section 194D).
Nominations
5.25
The annual theme for nominations is determined by the Minister and could
include the conservation of particular groups of species, particular species or
particular regions of Australia (new subsection 194D(2)).
5.26
New section 194G requires the Threatened Species Scientific
Committee to consider the nominations received (having regard to the Minister's
conservation themes) and prepare, for the Minister's consideration, a priority
assessment list. This list must be provided to the Minister within
40 business days. The Minister may make changes to the proposed list
within 20 days, including omitting an item (new section 194K), before
making a finalised priority assessment list.
5.27
The Scientific Committee may add things to the priority assessment list
that it considers appropriate or that itself wishes to nominate.[23]
5.28
The bill introduces new section 189B which requires members of the Scientific
Committee not to disclose an assessment or information used to make an
assessment, of any proposed amendments to lists of threatened species
(section 178), lists of threatened ecological communities (section 181)
and lists of key threatening processes (section 183), until:
- such an amendment has been registered under division 3 of part 4
of the Legislative Instruments Act 2003; or
- the Minister decides not to include the item in the lists; or
- the Minister decides to remove an item from the lists.[24]
5.29
The Minister can give permission for the Scientific Committee to
disclose particular information to particular persons. If the Minister does not
exercise his or her discretion then the Scientific Committee assessments and
advice remain confidential until a listing is made.
5.30
Under new subsection 194F(3), the Minister may reject a nomination
from the Scientific Committee if the nomination is 'vexatious, frivolous or not
made in good faith' or not made in the manner and form specified by the
regulations.
Comments and concerns
5.31
A number of witnesses, including the International Fund for Animal
Welfare (IFAW), expressed concern about the process for listing threatened
species, ecological communities and key threatening processes as proposed in
the bill.[25]
5.32
The Australian Network of Environmental Defenders' Offices (ANEDO),
Humane Society International (HSI), the Tasmanian Conservation Trust (TCT) and
WWF-Australia (WWF) were concerned that the repeal of section 185 'wipes the
assessment of 500 threatened ecological communities from consideration by the
Scientific Community'.[26]
5.33
Section 185 was designed to provide a strategic framework for the
Scientific Committee to consider all the ecological communities that received
protection under State and Territory legislation for their appropriate national
protection under the EPBC Act.[27]
5.34
ANEDO highlighted the extensive time and funding that environment and
community groups have put into making nominations under the Act that are yet to
be assessed and finalised. In relation to the new process ANEDO argued:
The new process provides no assurance that any of these
nominations will now be assessed for protection. DEH [Department of the
Environment and Heritage] has failed to process section 185 and many public
nominations under section 191 to date, despite obligations to do so. The
removal of obligations to process and assess nominations is a serious flaw in
the bill.[28]
5.35
HSI, TCT and WWF-Australia said that HSI alone currently has nominations
for 23 ecological communities, four threatened species and three key
threatening processes outstanding under the current assessment system.
When we submitted these nominations we did so in good faith on
the understanding that their consideration would be through an objective
scientific process according to statutory deadlines. If these amendments are
passed our nominations may never be incorporated into the Minister’s priority
lists and the obligation for them to be assessed can ultimately be removed
altogether.[29]
5.36
Mr Peter Andren MP did not support the changes and argued:
It is inexcusable that this bill determines the Minister no
longer must keep the lists of threatened species and ecological communities
up-to-date.[30]
5.37
HSI, TCT and WWF-Australia said that the repeal of section 185
could lead to a 'slower rate of new threatened species being added under the
EPBC ACT'.[31]
5.38
As WWF-Australia stated at the committee hearings:
At a general level, the repeal of section
185 has the potential to wipe out around 500 threatened ecological community
nominations that were originally gazetted by Minister Hill and that are
currently under consideration. That section was strongly supported by WWF, and Michael Kennedy, when he appears before
you, will reinforce that for HSI. That to me is one of the critical aspects of
this bill. It really is like removing the key provision that seeks to keep the
threatened species list up to date. That was its whole purpose. Section 185
enabled the Threatened Species Scientific Committee to review other state and
territory lists and basically pull out those that were deemed to be nationally
threatened and then place them on the national threatened species or ecological
communities lists. From our point of view, the repeal of that section is very
disappointing.[32]
5.39
The Australian Marine Conservation Society said:
The bill should not allow the Minister to remove altogether
already submitted public nominations for the listing of threatened species,
ecological communities...[33]
5.40
Concerns were also raised regarding subsection 194D(2) and the
implementation of annual nomination themes which it was argued do not provide a
definitive list of criteria. Some groups questioned what factors would be taken
into account apart from the conservation status of the species or communities.
5.41
Concerns were raised about the streamlining provisions of the bill in
regards to the introduction of themes, with the National Parks Australia
Council stating:
That is the difficulty with this bill. It
is saying that it is streamlining things and yet, in effect, by declaring a
theme it is creating a huge workload in that there would be a constant stream
of people on the doorstep saying: ‘Look, we have found this thing. We actually
need it declared now.’ Of course, they would be very urgent because you would
already have the ditch digger on site. We do not think it will streamline it.[34]
5.42
The Australian Conservation Foundation stated that:
The identification of a theme for a year indicates a clear
intent to deprioritise the species that do not fall under that theme, and in
fact to delay the consideration of those nominations. That is my understanding.[35]
5.43
There were also concerns raised about the ease of the community to
engage in the listing process:
If you had a thematic structure we would not be able to engage
the process if the theme was not, say, invasive species. Yes, we could go down
an advocacy route; we could go down, in a sense, the politicised route of
engaging ministers’ offices and the department and so on. But, to me, that it
is an inferior way of proceeding with this sort of priority, given that you
have an existing, science based process that invites any public nomination of a
potentially threatened species or community or a key threatening process. That
is basically why WWF is supporting the status quo in relation to listings.[36]
5.44
While some witnesses felt the new listing process would make the system
more political, others argued to the contrary:
The amendments will also provide for a
more strategic approach for listing threatened species, ecological communities
and heritage places, through an annual program based on the importance of
nominations and listing proposals rather than the current as hoc approach. We
support what has the potential to become a more objective, less politicised
listing process.[37]
5.45
In looking overall at the issues that were expressed by the majority of
concerned parties in relation to the thematic nominations process, they mainly appeared
to relate to the use of ministerial discretion, and the loss of existing
nominations from the list.
5.46
In response to these concerns the Law Council of Australia provided the
following clarifications:
The thematic approach appears to be reasonable considering the
objects of the Act. The objects of the Act are to assess and improve actions
which are likely to have a significant impact on:
The commonwealth marine area;
World heritage properties;
Ramsar wetlands of international importance;
Internationally threatened species and ecological communities;
Internationally protected migratory species.
Without being an environmental scientist the thematic approach
appears to be in accordance with the objects of the Act.
In terms of themes and the 500 or so listings that are currently
waiting for approval and may not fit into this approach they are catered for by
the savings and transitional provisions (Schedule 2 Part 7), which deem them to
meet the requirements of the new Act depending on where they are up to in the
system. For example if there has been a nomination they are treated as though
nominated during the first period called for nominations (ie even if theme
declared the intention is they would be included). The nominations can only be
rejected if they are not in good faith, frivolous or vexatious (same as current
provisions 191 and 341E) or do not comply with new regs.[38]
5.47
Another group in support of the thematic listing process was the
Minerals Council of Australia, who said that:
Our members did consider this and were
supportive of the proposed shift towards a thematic listing process, where
things are considered more in terms of a landscape function and where they are
looked at as a whole rather than as a piecemeal listing process. One comment
that has been made is that the current process could be seen, and has in the
past been seen, as stamp collecting.[39]
5.48
The Department of the Environment and Heritage also clarified the fact
that the thematic process should be no impediment to nominations falling
outside of the annual themes process:
There are a number of aspects. First of
all the capacity of the Minister to establish themes is not mandatory, so he
may or may not establish themes. As I pointed out earlier, there currently is
provision in the existing legislation for themes on heritage places and he has
not chosen to actually use that provision, neither did the previous Minister.
So there is no guarantee that it is really providing an opportunity for the Minister
to establish themes. The second thing is even if the Minister does establish
themes, then that is obviously a priority that the threatened species committee
or the Heritage Council will look at, but it is not an impediment. It is not
saying that if you put up a valid and really good nomination that is outside
that theme, that cannot be picked up in the list. The other consideration is
that there is nothing in the legislation that says that if someone pops up a
really good nomination, whether it is threatened species or heritage, quite
outside the annual cycle after the nominations have closed, that they cannot be
considered as well. Really this is a facilitating mechanism not a prohibition.[40]
5.49
Some of the other concerns raised about the proposed changes were:
- the public are only invited to comment on the finalised list and
so the public will not necessarily know what the Scientific Committee recommended
as priorities for assessment that the Minister omitted from the final list
(under new section 194K; note that new section 189B gives the
Minister the discretion to allow the Scientific Committee assessments to be
made public);[41]
- the Scientific Committee will only consider comments that related
to eligibility for inclusion of an item on the list and the effect of including
the item in the list on the survival of the species or community concerned;[42]
and
- the priority list is not a legislative instrument and therefore
not disallowable by parliament.[43]
5.50
Humane Society International (HSI), the Tasmanian Conservation Trust
(TCT) and WWF-Australia argued that the current process was 'objective and
scientifically determined' and that the changes meant that:
...the Minister will now have broad arbitrary discretion to decide
what can and cannot be assessed for listing and protection under the EPBC Act.
The amendments open the way for the listing process to become highly
and...[e]nactment of these amendments will be a major retreat from what is
national and international best practice.[44]
5.51
Others put forward arguments that:
- the amendments would 'significantly limit the public and
scientific involvement in the listing of species';[45]
- the changes would make it more difficult for members of the
public to secure legal protection unde the Act for threatened species and
ecological communities;[46]
- that 'the more controversial species' (such as those that are
used on a commercial basis) were unlikely to qualify thematically.[47]
ANEDO submitted that nomination and listing must be based on conservation
status only;[48]
- if the new process comes into effect, it is not clear what
happens to nominations of a species that is not related to a theme;[49]
- there is no public consultation on the proposed list;[50]
- the Minister may have regard to any matter that the Minister
considers appropriate in reaching a decision;[51]
and
- the Minister can refuse to allow a previously rejected nomination
to be reassessed by the Scientific Committee, even if its conservation status
has declined further since the initial assessment.[52]
5.52
In response to concerns expressed regarding the Minister's discretion
regarding the listing of threatened species, consideration of nominations for
the list and removal of species from the list, the Department explained:
The proposed amendments to the listing process for threatened
species are 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 from
both the Department and the Threatened Species Scientific Committee 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.
Under the proposed amendments, the Threatened Species Scientific
Committee will be asked to identify which nominations are best placed within a
strategic framework and will provide that advice to the Minister. This will
allow the Minister, on the basis of expert advice, to ensure that efforts are
focused on the most important issues. It will also ensure that the highest
priority tasks are undertaken in the context of a well planned and manageable
work programme.
While decisions on these matters are made by the Minister, the
EPBC Act will require, as currently, that the Minister obtains and considers
advice from the Threatened Species Scientific Committee.[53]
5.53
There was support offered for the permit provisions contained in the
bill: As IFAW Asia Pacific stated:
IFAW does support and welcome amendments
(subsection 303CG(2A)) that would provide certain permit conditions related to
the import and export of wildlife to continue to have effect after the permit
has expired – usually 6 months. This would help to ensure that conservation and
animal welfare conditions extend for the life of the animal and its progeny.[54]
5.54
The Law Council of Australia argued that the documentation before the
Scientific Committee should be available to the public. It argued further:
...this secrecy is unnecessary and may prevent the Scientific
Committee from receiving information or advice which may impact on its decision
to list a species or an ecological community.[55]
5.55
In the event that the Scientific Committee were to make 'politically
unfavourable listing recommendations', HSI, TCT and WWF-Australia pointed out
that the Scientific Committee is prohibited from making this advice public.
5.56
The Law Council of Australia thought that the information should be
available to the public under the Freedom of Information Act 1982 because
of potential benefits to the Government of having scientific or local knowledge
data from the public placed before the Scientific Committee.[56]
As currently drafted, ANEDO said that the amendments are likely to frustrate
freedom of information applications and undermine the transparency of the
legislation.[57]
5.57
It is important however, that concerns about the amendments contained in
the bill are kept in perspective. As was pointed out during the committee
hearings:
The perspective needs to be kept at all times that this act does
not stand alone. It is not the only threatened species legislation that we have
in this country. Most of it is dealt with at the state level, which is why you
have the referral provisions; the federal government refers it off to the state
in the first instance and then it comes back.[58]
5.58
The Department provided a response to concerns expressed over the
removal of the requirement for Recovery Plans for listed threatened species. It
was stated by the Department that:
The proposed removal of the mandatory requirement for recovery
plans for all listed threatened species will not impact adversely on the actual
recovery in nature of any threatened species or ecological community.
Experience has shown that, for many species, the development of
recovery plans is an expensive, time consuming and overly bureaucratic process
without benefits commensurate to the effort expended to develop them. The
current onerous statutory requirements are arguably skewing the Australian
Government’s expenditure on threatened species too far towards planning,
relative to actual implementation of recovery action. Plans are often too
focussed on filling research or knowledge gaps rather than identifying recovery
actions or providing information to support statutory decision-making.
This problem with the current process has been recognised by the
Threatened Species Scientific Committee. With the approval of the Minister,
the Committee has over the past year or so been providing short pragmatic
conservation advice at the time of recommending listings to the Minister. This
conservation advice, which is made publicly available, sets out the main
factors associated with the species’ threatened status and information about
appropriate recovery action. The advice can be fed directly into regional
natural resource management plans and investment strategies, rather than
waiting for the development of a recovery plan.
The proposed amendments recognise the success of the new
approach and require approved conservation advice to be provided for all listed
threatened species and ecological communities at the time of listing.
The proposed amendments also recognise that there will continue
to be species and ecological communities that require the development of a
detailed recovery plan in the traditional style. The Minister must make a
decision whether or not such a recovery plan is required in relation to all
listed species and ecological communities. In doing so, he is required to have
regard to the independent, expert view of the Threatened Species Scientific
Committee.[59]
Fisheries
5.59
One witness raised concerns specifically about the provisions in
relation to the improbability of any future potential listing of commercial fish
as protected species. As HSI pointed out:
The Minister now has a wider discretion in what he has to
account for. But I should add that, when it comes to listing—and the example of
commercial fish is, I guess, the best—there is a tussle going on between NGOs
like mine who would like to see commercial fish put on environment lists when
recognised as being endangered. That has not yet happened for a commercial
fish. The industry does not want that and nor do I think does the federal
government’s fisheries bureaucracy. So the tussle goes on. So, when there is a nomination
made for a commercial fish, what you find is that even under the current law
ways are found to delay and to delay.[60]
5.60
However, in contrast to these concerns the Minister recently listed the
first commercial fish species under the provisions of the Act. The Minister's 9 November 2006 media release stated that:
The Orange Roughy fish species will be added to the threatened
species list under Australian environment law......Orange Roughy is the first
commercially harvested fish to be listed under the Environment Protection and
Biodiversity Conservation Act 1999...... Orange Roughy will be listed as
conservation dependent, and will be managed subject to a conservation programme
to be implemented by the Australian Fisheries Management Authority (AFMA). Scientific
advice to me indicated that Orange Roughy is under considerable pressure and
protection under environment law is needed if the species is to have any chance
of long-term survival...... The conservation programme will protect Orange Roughy
from over-fishing, in part by prohibiting targeted fishing in fishing zones. Catch
limits at the Cascade Plateau will be set at levels that will conserve the
species – AFMA has already announced a reduction in the zone’s 2007 total
allowable Orange Roughy catch. My decision to add the Orange Roughy to the
threatened species list follows careful consideration of the scientific
information, as well as extensive consultation with experts and the public,” Senator
Campbell said.[61]
5.61
The Australian Fisheries Management Authority (AFMA) welcomed the
provisions of the bill, pointing out that:
One of the changes is something that we
have been seeking for sometime from the portfolio, and that is around an
expansion or more flexibility in terms of the sorts of management arrangements
that can be accredited under those strategic assessment provisions of the EPBC
Act. Rather than just formal management plans under our Fisheries Management
Act, we manage some fisheries under fishing permits that are not under formal
plans of management, and it has been quite difficult in the past to actually
get those accredited or assessed, if you like. These changes clarify those
points and expand the sorts of arrangements that can be assessed under that
part of the act.[62]
5.62
The Commonwealth Fisheries Association welcomed the changes the bill
contained to allow for the recognition of fisheries management plans as
conservation plans, saying:
My understanding is that it is more a
process of accreditation of the fisheries management plans as conservation
plans. That is our hope, and I think that is the intention. But, again, I would
not like to be held to that. That is the way I have interpreted it—that these
amendments provide the capacity for the Minister for the Environment and
Heritage to accept the fisheries management plan as a conservation plan.[63]
5.63
The Department clarified the arrangements under the provisions of the
bill in terms of fisheries management plan by stating:
In terms of native fish, basically it is
not accrediting AFMA or any other fisheries managers’ plans as conservation
plans. There are two provisions in the conservation dependence category. For
non-fish— if I can put it that way—if the species is a focus of a conservation
program the cessation of which would lead to that species going to a higher level
of threat, they can be listed as conservation dependent.
What we are saying here—and it picks up a
bit of what Richard was saying earlier about the changes that have been
introduced over the past 18 months or so—is that it provides that, if the plan
of management provides for management actions necessary to stop the decline and
support the recovery of the species, it can be listed as conservation dependent
rather than at a higher category. So it is actually picking up the management
plans of the fisheries authorities. Provided they have the proper measures
within their management plans, that is what we would be relying on. It is not
duplicating or putting one above the other.[64]
5.64
The committee does note that there may be an unintended consequence of
the proposed amendment to subsection 179(6). The Australian Fisheries
Management Authority is required to apply the Australian Government’s Harvest
Strategies to all Commonwealth fisheries, and these will be specified in Plans
of Management under section 17 of the Fisheries Management Act 1991.
5.65
With the current proposed wording of paragraph 179(6)(b), every Plan of
Management developed by AFMA could be considered to be a plan referred to in
subparagraph 179(6)(b)(ii). If so, this would have the effect (presumably unintentional)
of making every species of fish taken in accordance with an AFMA Plan of
Management eligible to be listed as conservation dependant under subsection
179(6).
5.66
Perhaps a more effective arrangement would be to build a link into the
EPBC Act back to the Australian Government’s Harvest Strategy, which would
specify the criteria for a fish species to be listed as conservation
dependant. Clause 179(6) would then need to specify that these criteria would
be agreed by both the Minister for Environment and Heritage and the Minister
for Fisheries in the context of the management plan for the fishery.
Recommendation 2
5.67
The committee recommends that the minister review the wording of
proposed new subsection 179(6) in light of the above issue.
Conclusion
5.68
While scepticism was expressed by various witnesses about the changes
which would place a greater emphasis on the setting of themes for assessment by
the Minister, there was also support for this process. Explanations as to how
this system could work effectively while still taking into account provisions
for emergency listings were deemed to be satisfactory.
5.69
The committee regards the adoption of the thematic approach as useful
and generally supports it, however does stress the need for there to be provisions
within the Act for emergency listings to be more adequately accommodated.
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