Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Chapter 12: Threatened species and ecological
communities
Key points

Submissions were critical of the level of transparency in the nomination process, in particular for listing of
threatened species and ecological communities under the EPBC Act.

The use of a conservation theme for nominations for listing of threatened species and ecological
communities was viewed unfavourably in some submissions, as it appears to result in nominations outside
of the theme being excluded from consideration.

A number of submissions suggested changes to the current listing categories for threatened species and
ecological communities and the inclusion of an ‘emergency’ or ‘transitional’ listing power in the Act.

There is a lack of alignment between Commonwealth and State and Territory lists for threatened species
and ecological communities and this can result in inconsistencies and duplications of processes.

Submissions raised concerns regarding the perceived level of Ministerial discretion in decision-making for
listing threatened species and ecological communities and suggested that the role of the Threatened Species
Scientific Committee (TSSC) should be strengthened.
Listing of threatened species and ecological communities
Current provisions of the Act
12.1
The EPBC Act provides a legal framework for the conservation and sustainable use of Australia’s
biodiversity. Part 13 of the Act provides for the listing of nationally threatened native species and
ecological communities, native migratory species and key threatening processes. The decision to list a
species or ecological community under the Act establishes a requirement to provide for the protection
of that species or ecological community, and creates an obligation for developers and other land owners
and managers to avoid having a significant impact on the species or ecological community.
12.2
Under ss.178, 179 and 180, the Minister must establish a list of threatened native species, divided into
six categories. The 2006 amendments to the Act introduced new provisions for the listing of
commercially exploited marine fish (s.179(6)). This allows for commercial fish species to be listed as
conservation dependent so that fishing may continue, subject to a plan of management that provides for
the recovery of the species.
12.3
Regulation 7.01 of the EPBC Regulations specifies guidance for identifying the appropriate category
when listing threatened species.
12.4
Similarly, under ss.181 and 182, the Minister must establish a list of threatened ecological
communities, divided into three categories. The Act defines ‘ecological community’ as the ‘extent in
nature in the Australian jurisdiction of an assemblage of native species that inhabits a particular area in
nature and meets the additional criteria specified in the Regulations (if any) made for the purpose of
this definition’.1 Regulation 7.02 specifies criteria for identifying the appropriate category when listing
threatened ecological communities.
12.5
An invitation to nominate a species or ecological community for listing under the Act is extended to the
public by the Minister each year. Following the 2006 amendments to the Act, the Minister can now
choose to establish a conservation theme when inviting nominations. The establishment of a
conservation theme does not however limit the range of nominations that can be submitted; that is, the
public can still nominate species which fall outside the theme. Nominations must be made in the form
specified in Regulation 7.03.
12.6
All nominations submitted within the nomination period, in the form prescribed in the Regulations, are
forwarded to the TSSC. The TSSC then prepares a Proposed Priority Assessment List (PPAL) which is
forwarded to the Minister. The Minister then determines the Finalised Priority Assessment List
(FPAL). The FPAL is made publicly available on the Department’s website.
1
DEWHA, Criteria for listing threatened ecological communities (2009) http://www.environment.gov.au/biodiversity/threatened
/nominations-make.html at 15 May 2009.
12.7
All nominations included in the FPAL are assessed by the TSSC within the time frame specified by the
Minister, generally within one year of the FPAL for species and two years for ecological communities.
The TSSC invites public and expert comment on the FPAL nominations as part of the assessment and a
technical workshop with experts is often held as part of ecological community assessments.
12.8
The nominator is advised if their nomination was not included in the FPAL and that the nomination
will be considered for prioritisation in the following nomination cycle. If the nomination is not
prioritised a second time, it is no longer automatically eligible for prioritisation in future assessment
periods. The nominator is advised of the outcome and that they are able to re-nominate if they wish.
12.9
After considering the scientific evidence and consulting with experts and the public, the TSSC provides
its listing advice to the Minister. It must advise the Minister on whether a species or ecological
community is eligible for listing, having regard only to the entity’s eligibility for listing, and the effect
that listing may have on its survival. The Minister must then determine whether or not to list the species
or ecological community, again based only on the entity’s eligibility for listing, or the effect listing
would have on its survival.
12.10
Currently, the EPBC Act does not specifically allow for the use of the precautionary principle in listing
species, ecological communities or key threatening processes.
12.11
The process is similar to that for listing National Heritage places under the Act (discussed in Chapter
11 of this report).
12.12
Following the 2006 amendments, the Minister has made 30 threatened species listing decisions and
seven ecological community listing decisions on FPAL nominations. Thirty-four nominations, 17 for
threatened species and 11 for ecological communities, are still under assessment.
Key points raised in public submissions
Removal of the requirement to keep the list up-to-date (s.185 of the act)
12.13
Prior to the amendment of the Act in 2006, the Minister was required to maintain the lists of threatened
species and ecological communities in an ‘up-to-date condition’ by taking ‘all reasonable and practical
steps to amend as necessary’. Further, s.185 required that the Minister decide whether to include an
ecological community in a list that was administered by a State or Territory. There was strong support
in public submissions that s.185 be reinstated.
12.14
It was argued that removal of s.185 was to lighten the administrative burden and ease political pressure
regarding controversial listings2 and this amendment was perceived as increasing delays in the listing
process. Submitters felt that keeping the lists in an up-to-date condition was critical to the operation of
the Act. This flowed from the concern that in the absence of a statutory requirement to keep the list ‘upto-date’ a Government may allow the list to wither. Whether or not an action is likely to trigger the Act
depends upon its likely impact on a listed threatened species or ecological community. Permits for
actions on Commonwealth land and investment in species recovery also rely on the species being
listed.
Nomination themes
12.15
Submissions were critical of a number of components of the process of nominating and listing
threatened species, ecological communities and key threatening processes. In particular, the themed
nomination approach was viewed as arbitrary, focused on large, iconic species and not consistent with
the precautionary principle and principles of good conservation management. The NSW Scientific
Committee argued that ‘the recently implemented annual cycle would seem to impose unnecessary
constraints on public participation for the convenience of managing nominations. Listing processes in
other jurisdictions in Australia and abroad operates effectively in the absence of such an imposition’. 3
The Nature Conservation Council (NCC) noted:
The use of ‘conservation themes’ for each assessment period may encourage nominations from areas and
ecosystems under particular threat, such as rivers and wetlands; it could also increase the chance of threatened
species slipping through the gaps, or being delayed in the listing process. With the criteria for listing already
specified by the EPBC Regulations, these conservation themes seem to be superfluous to the listing process and
merely a filter to reduce the number of nominations received. 4
2
3
4
Submission 188: Nature Conservation Council of New South Wales.
Submission 150: New South Wales Scientific Committee.
Submission 188: Nature Conservation Council of New South Wales, p.8.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
12.16
Concern was also raised as to whether some nominations had been inappropriately rejected as a result
of the themed approach. Conversely, the Department advised that the themed approach was used as a
mechanism to help focus assessment effort on priority species and ecological communities.
12.17
No evidence was found to show that the themed process was being used to manipulate nominations
inappropriately. In particular, many of the items placed on the 2008 FPAL were not consistent with the
conservation theme. It is the opinion of the TSSC that conservation themes have successfully drawn out
nominations from certain types of entities or areas that were previously under-represented on the EPBC
lists for threatened species and ecological community.
12.18
Submissions supported the public nomination system, however many submissions argued that the
process of preparing an application for listing was excessively bureaucratic, technical, time-consuming
and slow, making it difficult for non-technical members of the public to contribute. 5 A number of
submissions suggested that the PPAL should be made publicly available for comment before it is
submitted to the Minister.
12.19
The time frame, introduced in the 2006 amendments, of 6-12 weeks in each year in which to submit
nominations was viewed by one submission as too brief a period, and imposed unnecessary constraints
on public participation. Concerns were also raised about delays in the listing process between
nomination and listing. While the 2006 amendments to the Act provide for an annual assessment
period, with assessment timeframes and possible extensions for individual nominations determined by
the Minister, the lack of a mandatory timeline for the assessment of nominated species and ecological
communities remains a concern for submitters.
12.20
Comments were made on the listing processes under the NSW Threatened Species Conservation Act
1995 and the Victorian Flora and Fauna Guarantee Act 1998, which were considered to run more
smoothly and efficiently compared with the Commonwealth process.
Prioritisation of nominations
12.21
The Australian Network of Environmental Defender’s Offices (ANEDO) also commented on the 2006
amendments, noting that since the amendments, once all nominations relating to a theme for the year
are received, the TSSC has 40 days to consider the nominations and provide the Minister with a
Priority Assessment List. ANEDO argued that:
There is no explicit reference to conservation status as being a relevant consideration for inclusion on the
Priority Assessment List. This is inconsistent with Australia’s obligations under the Convention on Biological
Diversity. Further there is no public consultation on the proposed list, and the Minister may have regard to ‘any
matter that the Minister considers appropriate’ in reaching this decision. It is therefore possible for a nominated
species to be removed from the final Priority Assessment List on commercial or economic grounds, regardless
of the conservation status of that species. We submit that priority listing process should be removed. 6
12.22
It was argued a priority setting approach was required in determining which species and ecological
communities should be considered for listing in the relevant assessment period and the ‘Back on Track
species prioritisation framework’, 7 which is an initiative of the Queensland Government that prioritises
Queensland’s native species to guide conservation, management and recovery was suggested as an
alternative approach.
Categories of threat in listings
12.23
In responding to question 13 in the Discussion Paper, which sought comments on whether the
categories of threat are appropriate, submitters argued that the eligibility for respective categories of
threat should be the exclusive consideration for amending the lists of species and ecological
communities. That is, decisions should be based on science, not management considerations.
12.24
A recurring theme was that the focus on protecting threatened species was failing to provide a basis for
Australian Government action to prevent species from becoming threatened in the first place. 8 The
absence of provisions enabling listing of species or ecological communities that are ‘near threatened’,
‘intra-continental migratory’ species or species that are ineligible for listing due to data deficiencies or
just fall short of meeting ‘vulnerable’ thresholds was noted. Submitters were concerned that action
5
Submission 051: Healesville Environment Watch, p.1.
Submission 189: Australian Network of Environmental Defender’s Offices, p.42.
7
Queensland Government, Back on Track species prioritisation framework (2008)
http://www.epa.qld.gov.au/nature_conservation/wildlife/back_on_track_species_prioritisation_framework/ at 22 June 2009.
8
Submission 132: Jeremy Tager, p.5.
6
should be taken before species become eligible for listing as ‘vulnerable’, or ecological communities
become listed as ‘endangered’, and therefore be afforded protection under the Act.
12.25
It was also argued that for some species and ecological communities there would be significant
conservation benefit if protective measures were invoked before further declines occurred, particularly
as early preventative measures are likely to be more cost-effective and successful than recovery action
at a later time. Submissions argued that recognising an additional category such as ‘near-threatened’
and/or ‘data’ deficient’, species and ecological communities under the Act could be afforded statutory
protection and be used as a ‘flag’ for priority funding and recovery actions. 9 Recovery actions are
discussed in Chapter 13 of this report.
12.26
The TSSC, in their submission to this review, also argued that:
Another improvement could be made if there existed a framework for recognising near threatened, rare and
data- deficient species and ecological communities that was linked to Key Threatening Process criteria. This
would not necessarily involve a listing and subsequent NES trigger for these categories. However, it becomes
important in the role these could have as justifications in law of the establishment of Key Threatening Processes.
This and subsequent recommendations are focused on earlier action for protection and/or recovery of declining
species and ecological communities, rather than waiting until they are seriously threatened. 10
12.27
The WWF submission went further, suggesting species considered as data deficient should be treated as
‘vulnerable’ until better information is available (a precautionary approach supported by the IUCN). 111
12.28
The Queensland Government submission stated that:
[t]he criteria used by the Commonwealth for species listing do not necessarily use the latest version of
international[ly] accepted criteria (i.e. International union for Conservation and Nature) whereas a number of
States use IUCN criteria.12
12.29
It was recommended that the Act adopt more strictly internationally accepted listing categories and
criteria for species, such as those used by the IUCN and similar to those used by a number of the state
governments.13
Emergency listing
12.30
A number of submissions called for the provision of an emergency listing category for species and
ecological communities, similar to the provisions for the emergency listing of National Heritage places.
Some submissions suggested that a provision for emergency or transitional listing should be considered
as this category could be used for newly discovered species, new threats and disasters and whilst
additional information was being sought. The NSW Threatened Species Conservation Act 1995 was
provided as an example, where, in emergency situations, the NSW Scientific Committee can
provisionally declare a species to be endangered in NSW, without going through the public
consultation process. 14
12.31
The Humane Society International (HSI) noted:
If excessive timeframes for assessing nominations remain, HSI believes the need for emergency listing
provisions is as important as ever. The Minister needs to have the ability to act swiftly where there are
immediate or ongoing threats of significant impact to a nominated species or ecological community. Otherwise,
given the typical timeframes currently given for assessing nominations, a species or ecological community
could well find itself qualifying for a higher category of threat at the point of listing to what it did at the point of
nomination.15
List alignment
12.32
9
Threatened species lists are maintained at both the Commonwealth and State and Territory level, often
using different criteria and listing approaches. In discussing opportunities to reduce duplication
between the Commonwealth and State and Territory listing regimes, it was argued in submissions that
it is difficult to compare threatened species lists across jurisdictions, and that there is the potential for
inconsistent assessments and conflicting information on threatened species. For example, a species may
be listed as ‘endangered’ in one State, yet in another State it may be listed as ‘critically endangered’.
This inconsistency may be due to the species being subject to a higher degree of threat in one particular
Submission 182: The Humane Society International.
Submission 211: Threatened Species Scientific Committee, p.1.
11
Submission 181: WWF.
12
Submission 196: Government of Queensland, p.4.
13
Submission 181: WWF.
14
Threatened Species Conservation Act 1995 (NSW).
15
Submission 182: Humane Society International, p.25.
10
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
state, or it may be due to the fact that in some states, ‘endangered’ is the highest listing category
available.
12.33
The Urban Development Institute of Australia noted that:
there are opportunities to reduce duplication as the current system is cumbersome and lengthy and there is no
mechanism to align the processes especially in situations where State and Commonwealth expectations differ. 16
12.34
Submissions also offered a number of suggestions to progress alignment of Commonwealth and State
and Territory lists, including the maintenance of a single national list for threatened species and
ecological communities, which, it was argued, would reduce duplication, increase transparency and
efficiency and allow for the provision of a greater level of protection. In contrast, some submissions
suggested that the States maintain a list of endemic species, through a Commonwealth accredited
process,17 and the Commonwealth maintain a list of cross-jurisdictional species. The Urban Taskforce
Australia suggested that ‘all “lower order” heritage, state reservation or threatened species listings
should automatically lapse when an equivalent Commonwealth listing is made’. 18
12.35
The NSW Scientific Committee noted that while there are legitimate reasons for differences in listing
of species and ecological communities between Commonwealth and State and Territory jurisdictions, it
may be possible to develop protocols for joint assessments in the event that contemporaneous
nominations arise, or abbreviated supplementary assessments where listings have already occurred in
one jurisdiction and are also relevant for consideration in another jurisdiction. 19
12.36
HSI noted that they felt it was perfectly acceptable that there should be discrepancies between
Commonwealth, State and Territory lists because they are protecting species and ecological
communities according to different scales of responsibility. For example, a species may be threatened
within NSW but elsewhere in its range its conservation status may be more favourable such that overall
it doesn’t qualify for listing nationally. 20
12.37
The TSSC submission commented that ‘there is a need to clarify the interrelationship between the
current listing categories and other categories frequently encountered by the Committee’. 21
Protection of ecological communities
12.38
A number of submissions raised issues specific to the listing of ecological communities. 22 Many
indicated that listing ecological communities was more meaningful than listing individual species.
12.39
The Nature Conservation Society of South Australia argued that all condition classes of listed
vegetation should be protected, using the listed Peppermint Box Grassy Woodland and Iron-grass
Natural Temperate Grassland ecological community as an example:
Given that Peppermint Box Grassy Woodland is listed as threatened because of a severe decline in distribution
and ongoing loss of integrity, much of the remnant vegetation of this type is likely to be in small, highly
degraded patches. If these patches are not protected the recovery potential for the community is severely
compromised.23
12.40
Associate Professor Paul Adam noted:
The difficulties with the Commonwealth Approach are seen in the case of Blue Gum High Forest, a critically
endangered ecological community under both State and Commonwealth schedules. It is critically endangered
because so much has been lost and what is left is degraded and fragmented. However, because most stands are
degraded and fragmented they do not fall within the Commonwealth listing, whereas all stands are included
within the NSW listing.24
12.41
In relation to the listing of ecological communities under the Act, the TSSC noted that:
The Committee believes that the listing of ecological communities at the broad scale has been a success.
However, for Recovery Plans to be effective, they should be couched at a landscape scale, probably using
catchments as units. To do this, the identified ecological community would require a legislative tool to allow
buffer zones of the ecological community to be defined at listing.25
16
Submission 095: urban Development Institute of Australia, p.10.
Submission 196: Government of Queensland, p.3.
18
Submission 149: Urban Taskforce Australia, p.4.
19
Submission 150: New South Wales Scientific Committee.
20
Submission 182: Humane Society International.
21
Submission 211: Threatened Species Scientific Committee, p.1.
22
See e.g. Submission 064: Bird Observation and Conservation Australia, p.3.
23
Submission 023: Nature Conservation Society of South Australia, p.5.
24
Submission 027: Associate Professor Paul Adam, p.8.
25
Submission 211: Threatened Species Scientific Committee, p.2.
17
Listing considerations
12.42
Several submissions dealt with considerations made during the listing decision-making process.
12.43
A number of submissions questioned the lack of separation of responsibility for listing, and
responsibility for recovery and conservation actions. Submissions argued that this situation created a
public perception that socio-economic considerations infiltrate the listing process, possibly impeding
the listing of some species and ecological communities. The Orange Roughy, which was listed as
‘conservation dependent’ in 2006, was one example of a species listing that was regarded as being
informed by socio-economic considerations and used in these cases as a result of pressure from the
fishing industry.26 The failure to list the Southern Bluefin Tuna was another. However, in relation to
this argument, the Australian Southern Bluefin Tuna Industry Association noted the Minister for the
Environment, Heritage and the Art’s 2008 statement:
I am satisfied that the operation of the Southern Bluefin Tuna fishery is consistent with the wildlife provisions in
Part 13A of the EPBC Act. I am satisfied that it is unlikely to be detrimental to the survival or conservation
status of any taxon to which the fishery operation relates, or threatens any relevant ecosystem in the short
term.27
12.44
The 2006 amendments to the Act introduced new provisions specifically for the listing of commercially
exploited fish, and as HSI noted, prior to the amendment a species could only be listed as conservation
dependent if it did not qualify for listing in a higher category. 28 It was argued that, as a consequence,
the categories of threat are no longer appropriate for marine fish and should be reviewed.
12.45
Submissions also argued that the ‘conservation dependent’ category provides no legal protection for the
species. Further, submissions noted the 2006-07 Australian National Audit Office (ANAO) Report
considered that this amendment was likely to place additional responsibility on the Department to
monitor effectiveness of management plans and this will be particularly important for species where
the TSSC has recommended a higher level of protection.29
12.46
The NSW Scientific Committee noted that listing of threatened species and ecological communities
under the Act performs two functions: a reporting role to inform the public on the status of Australia’s
biodiversity; and a planning role to inform decisions about conservation of listed threatened species and
ecological communities.30 The Committee argued that the lack of separation of these roles under the
Act generates a public perception that socio-economic considerations infiltrate the listing process,
leaving it potentially open to abuse. The Committee suggested that a separation of listing
responsibilities from decision-making on conservation actions would strengthen public confidence in
the listing process.31
12.47
Since 2000, the Minister disagreed with a TSSC recommendation for the listing of two species, the
Bluefin Tuna and a River Snail. In one additional case, the Orange Roughy, the Minister disagreed with
the TSSC recommendation concerning the category for listing. However, the Minister decided to list
the species within another category. In all cases, the reasons for the Minister’s decision were
documented and were relevant to the provisions of the EPBC Act.
12.48
It may therefore be that the problem identified by the NSW Scientific Committee is one more of
perception than fact. But there is no guarantee that this will remain the case in the future. The question
of public perception, and trust in the process, is also a vital one. It might be a different matter if there
was a statutory requirement that the TSSC’s scientific assessments and advice were all made public
when they were provided to the Minister. Within this context, there may be a need to revisit s.189B of
the Act in relation to the disclosure of the TSSC’s advice. In practice, the TSSC’s detailed listing
assessments and recommendations are published on the internet at the time the Minster makes the
listing decision, but it may be helpful to make this an explicit requirement under the Act.
12.49
The Queensland Government suggested that listing decisions use a different method for assessing
whether a species should be listed under their Act. This process would consider ‘other factors such as
‘do we know the threats?’, ‘can we manage the threats?’ and may assist in providing a clearer basis for
listing of species or ecological communities and threatening processes.’ 32 The review notes that the Act
already provides the Minister with discretion to consider what benefit the listing would have for the
species.
26
Submission 182: Humane Society International.
Submission 203: Australian Southern Bluefin Tuna Industry Association, p.2.
28
Submission 182: Humane Society International.
29
Australian National Audit Office Audit Report No.31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities.
30
Submission 150: New South Wales Scientific Committee.
31
Submission 150: New South Wales Scientific Committee.
32
Submission 196: Government of Queensland, p.5.
27
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
12.50
With regards to potential changes to the considerations required to be taken into account when making
listing decisions, the Environment Institute of Australia and New Zealand argued that:
In regards to matters to be considered by the Minister when deciding whether to list a species or ecological
community, for domestic biodiversity management the most important thing of all is the rate of decline. In some
cases, absolute scarcity is arbitrary. A species may be rare but at the edge of its range, or it may be rare with
naturally restricted range and has not declined for decades. … The most rapidly declining species in notably
important habitats (e.g. habitats with a measurably important ecosystem service role such as wetlands) are the
most relevant for biodiversity management.33
The protection of ecological communities listed as ‘vulnerable’
12.51
Several submissions highlighted that ecological communities listed as vulnerable were not protected
matters under Part 3 of the Act (i.e. actions likely to have a significant impact on a ecological
community listed as vulnerable do not require approval under the Act). 34 Mr Jamie Pittock, Dr Debra
Saunders and Ms Karen Stagoll’s submission argued that:
Species and ecological communities listed under all categories of threat should be considered a matter of NES.
… vulnerable and conservation dependent listed species and vulnerable ecological communities need to be
considered matters of NES … The level of threat should only become relevant at the assessment stage. 35
12.52
The TSSC also noted in its submission that ‘proactivity in species recovery and management can be
achieved if the protection provisions of the Act were triggered for ecological communities listed as
vulnerable.’36
Senate inquiry into the operation of the EPBC Act
12.53
In its first report, the Senate Committee noted the 2002 Australian Terrestrial Biodiversity
Assessment37 and the 2006 State of the Environment Report38 which highlighted the decline of
biodiversity in areas of Australia, and the need to prioritise conservation of threatened species and
ecological communities. The Committee made a number of recommendations for the process of
nominating and listing threatened species and ecological communities:
The process for nomination and listing of threatened species or ecological communities be amended to improve
transparency, rigour and timeliness. Changes that should be considered include either requiring publication of
the TSSC’s proposed priority assessment list or reducing ministerial discretion to revise the priority list under
s.194K; and reducing the maximum period allowed for an assessment under s.194P(3).39
Discussion of key points raised in submissions
Determination of themes and prioritisation of lists
12.54
The priority setting approach required in determining which species and ecological communities should
be considered for listing in the relevant assessment period was criticised. Prioritisation of listing
threatened species and ecological communities is a necessary requirement in terms of the consideration
of benefits associated with listing the species, ecological community or key threatening process.
However, this aspect of the nomination process remains contentious and an assessment of the benefits
of this approach may be considered. Further, the establishment or publishing of criteria for
prioritisation of nominations for listing which are explicit and transparent, possibly through an
amendment to the Act or Regulations, may address the concerns regarding the perceived subjective
nature of the current prioritisation approach to nominations raised in submissions.
12.55
The 2006-07, Australian National Audit Office ANAO report40 into the administration of the Act made
a number of recommendations regarding the conservation of threatened species and ecological
33
Submission 087: Environment Institute of Australia and New Zealand, p.9.
See e.g. Submission 179: International Fund for Animal Welfare, p.10; and Submission 182: Humane Society International, p.4.
Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll, p.9.
36
Submission 211: Threatened Species Scientific Committee, p.1.
37
Paul Sattler and Colin Creighton, Australian Terrestrial Biodiversity Assessment 2002, National Land and Water Resources Audit (2002)
http://www.anra.gov.au/topics/vegetation/pubs/biodiversity/bio_assess_threat.html at 2 April 2009, Chapter 4.
38
Robert JS Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt, Dennis Trewin, Australia State of the Environment
2006 (2006), Chapter 5.1. Available at: http://www.environment.gov.au/soe/2006/publications/report/land-1.html
39
The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and
Biodiversity Conservation Act 1999: First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf, at 5
June 2009, para [5.34].
40
Australian National Audit Office Audit Report No.31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities.
34
35
communities. The Department has advised this review that it has undertaken a number of initiatives
relevant to the listing of threatened species and ecological communities under the Act in response to the
ANAO report.41
12.56
In particular, the 2006 amendments to the Act established a new process for listing threatened species,
ecological communities and key threatening processes by allowing nominations to be prioritised for
assessment. The new process was designed to improve the effectiveness of listing with a more strategic
approach which focuses on those species and ecological communities in greatest need of protection.
However, points raised in submissions to this review suggest that further improvements could be made
to the listing process, particularly with regard to the listing of threatened marine species.
List alignment
12.57
In examining the alignment of Commonwealth, State and Territory threatened species and ecological
community lists, it is important to look at how and why these lists differ. As noted in the HSI
submission above, it is possible that some degree of overlap and differentiation between the
Commonwealth’s lists and State and Territory lists may be appropriate due to the different foci of the
two types of lists.
12.58
For example, a species that, on a national level, meets the EPBC Act criteria for an ‘endangered’
species may be critically endangered in one State but not threatened in another. It is therefore
appropriate for some differences to arise between lists. However, in this situation, the TSSC’s current
practice of reporting variations in listing status, threats and distribution across a species or ecological
community’s range, should be maintained and enhanced – this could provide a helpful guide for
directing recovery planning efforts and resources. It would also be helpful if all Australian jurisdictions
adopted the same criteria for listing threatened species and ecological communities. It may be
appropriate for all jurisdictions to adopt the most recent version of the IUCN criteria, but taking this
approach would require further consultation with interested parties.
12.59
The process of aligning Commonwealth species lists with State and Territory lists is progressing. For
instance, in 2004, the Australian Government initiated Species Information Partnerships 42 with a
number of State and Territory governments. The objective of Species Information Partnerships is to
develop a national approach to species listing which reduces duplication and inconsistencies agreed by
all jurisdictions, in order that:

threatened species listing decisions are transparent and are based on rigorous science and the best
available information;

information about threatened species, including conservation status data sets, is shared between
jurisdictions; and

greater consistency is achieved between listing processes across jurisdictions.
12.60
It is noted that the protection of ecological communities afforded by the States and Territories is ad hoc.
Some States and Territories do not list ecological communities, and some that do maintain a list
provide little or no protection for the ecological communities.
12.61
Amendments to the existing listing categories, including the addition of ‘near threatened’ and/or an
‘emergency’ category may be considered as part of the alignment of lists process. However, there is a
need to ensure that these amendments meet the objectives of the legislation and do not result in
perverse outcomes for species.
12.62
Where there is commonality in the lists, with consistent categories and criteria for listing,
harmonisation of these lists should be considered. There are a number of ways this harmonisation could
occur. The EPBC Act could be amended to allow the Minister, acting on the advice of the TSSC to
accredit a State or Territory listing, where criteria and categories are consistent. Alternately, States and
Territories could agree to accredit Commonwealth listing of a species or ecological community where
the criteria and category of listing are consistent.
12.63
However, the desire to simplify the number of lists and listings should not override the need, in some
cases, to list the same species or ecological community at both a Commonwealth and State/Territory
level. As noted above, a species may be threatened nationally, but not threatened in a particular
jurisdiction.
41
42
Senate Committee Report, Submission 85 (Department of the Environment, Water, Heritage and the Arts).
Department of the Environment and Heritage, Species information partnerships: Sharing knowledge on threatened species (2006)
http://www.deh.gov.au/soe/2006/emerging/species-listing/index.html at 2 April 2009.
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
12.64
The different roles of Commonwealth and State and Territory Governments must be kept in mind when
determining the focus of a particular list. The Commonwealth is responsible for managing ‘nationally
endangered or vulnerable species and communities’, 43 while States and Territories are responsible for
species and communities that are threatened in their jurisdiction. The Commonwealth’s role in this
issue is therefore to look at species and ecological community abundance and threats to those entities at
a national level. It may therefore be appropriate for the EPBC Act to deal with species and ecological
communities occurring in two or more jurisdictions, while the State and Territory frameworks regulate
species and ecological communities endemic to that jurisdiction. This would create greater certainty for
proponents and for regulators; however, there are significant implications for such a change in terms of
regulatory protection and recovery effort. Wide variations in protection and recovery provisions across
jurisdictions could lead to significant variations in conservation of species and ecological communities
endemic to individual jurisdictions, and could potentially reduce the ability of the Commonwealth to
support recovery of these entities. Another risk would be that a species could be incorrectly listed if, for
example that species’ habitat is misjudged to be endemic to one State, when it in fact has habitats in
several States and Territories.
12.65 Further comment is invited on this issue.
Listing criteria
12.66 The listing criteria used by the TSSC and the Minister in the listing decision-making process under the
Act are outlined in the Guidelines for Assessing the Conservation Status of Native Species according to
the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) and EPBC
Regulations 2000 (Assessment Guidelines).44 These Assessment Guidelines differ slightly from the IUCN
criteria,45 with the key difference being that the Assessment Guidelines use fewer quantitative thresholds
than the IUCN criteria (and there are no IUCN criteria for ecological communities). The Assessment
Guidelines expressly note this modification, but also note that the TSSC will have regard to the
thresholds specified in the IUCN criteria, but ‘on a case- by-case basis.’46 This modification is justified in
the Assessment Guidelines for the following reason:
It is not necessary to identify a quantitative risk of extinction, but it is important to ensure that judgements about
the criteria (for example, whether a reduction in numbers represents a severe decline), are made in the context of
risk of extinction. For example, the Committee’s consideration of whether a reduction in numbers of a species is
‘severe’ takes into account the relationship between the reduction in numbers and the biological and other
factors that are relevant to the species’ risk of extinction in the wild (or, alternatively, the factors relevant to the
species’ prospects of survival in the wild).
The Committee is also informed by, but not bound by, indicative thresholds, which have been adapted from
“IUCN Red List Categories and Criteria version 3.1, 2001”. When considering whether to use these thresholds,
the Committee judges whether they are appropriate to the species in question. For example, a relatively longlived species with slow reproduction and relative population stability (such as most mammals) might be more
impacted by, for example, a 30% decline in numbers than might a relatively short-lived species with fast
reproduction and naturally fluctuating populations (such as most insects). This consideration of biological
attributes is placed in the context of matters such as the relative population size so as to judge whether, for the
species in question, a decline is substantial, severe or very severe, for the purposes of the criteria for listing.47
12.67 This approach appears to be a sensible one in the circumstances. It is acknowledged that this approach
tends to provide less certainty than one which applies thresholds regardless of other circumstances.
However, the current level of flexibility in this criteria allows the TSSC (and the Minister) to consider
other aspects of the species’ or ecological community’s ecology than may be relevant than in an
examination of purely whether the data meets the threshold in the criteria.
43
Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997)
http://www.environment.gov.au/epbc/publications/coag-agreement/preamble.html at 18 May 2009.
Threatened Species Scientific Committee, Guidelines for Assessing the Conservation Status of Native Species according to the
Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) and EPBC Regulations 2000
http://www.environment.gov.au/biodiversity/threatened/pubs/nominations-form-species.doc at 25 May 2009.
45
International union for Conservation of Nature, IUCN Red List Categories and Criteria: 2001 Categories & Criteria (version 3.1) (2001)
http://www.iucnredlist.org/static/categories_criteria_3_1#categories at 25 May 2009.
46
Threatened Species Scientific Committee, Guidelines for Assessing the Conservation Status of Native Species according to the
Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) and EPBC Regulations 2000
http://www.environment.gov.au/biodiversity/threatened/pubs/nominations-formspecies.doc at 25 May 2009, p. 15.
47
Threatened Species Scientific Committee, Guidelines for Assessing the Conservation Status of Native Species according to the
Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) and EPBC Regulations 2000
http://www.environment.gov.au/biodiversity/threatened/pubs/nominations-formspecies.doc at 25 May 2009, pp. 15-16.
44
Listing categories
12.68 As noted above, submissions raised concerns regarding the use of the ‘conservation dependent’ category
for marine fish which highlight the complexity associated in determining whether a species should be
listed, and the challenges associated in listing commercially fished species which may also occur in
international jurisdictions.
12.69 Under s.179(6)(b) of the Act, a fish species is eligible to be listed as ‘conservation dependent’ if the
species is the focus of a management plan currently in force which provides for the actions needed to halt
decline and achieve recovery of the species, and if the cessation of the plan would adversely affect the
conservation status of the species. This category is intended to provide a mechanism for the sustainable
management of commercially harvested species. There are currently three fish species listed as
conservation dependent.
12.70 ther species can be listed as conservation dependent if they are the focus of a conservation program
without which it would become eligible for listing as vulnerable, endangered or critically endangered.
Currently there are no non-fish species listed as conservation dependent.
12.71 The category ‘conservation dependent’ was previously one of the categories in the IUCN’s Red List.
However, as the IUCN Species Survival Commission found that:
[t]he current use of Conservation Dependent as an independent Red List category is not logically consistent as a
taxon can be both threatened and conservation dependent. In addition assessors have used this category in a
variety of contexts making it less useful than was hoped.48
12.72 They suggested that:
[m]ore logically Conservation Dependent could be used as a flag under all the threatened categories but this is
not a satisfactory solution as it would require many difficult judgements to be made about the effectiveness of
conservation programmes.49
12.73 The category was therefore removed from the most recent edition of the IUCN Red List, but has
remained in the EPBC Act as a category under which species can be listed.
12.74 The protection offered to ‘conservation dependent’ species is less than that offered to species and
ecological communities listed in other categories under the Act (except for ‘vulnerable’ ecological
communities, discussed below). Most importantly, an action that has or is likely to have a significant
impact on a conservation dependent species or ecological community does not require approval under the
Act. The existence of this category under the Act is therefore open to question, noting that the TSSC has
recently recommended its use in relation to commercial fish species which are also eligible for listing in
higher categories. In these cases, the TSSC considered that a conservation dependent listing based on the
implementation of sound management plans that provide for the recovery of the species was a more
effective conservation outcome for these species than simply listing them as threatened. The TSSC has
required regular reporting on the operation and results of these plans, to ensure their effectiveness can be
adequately monitored.
12.75 The Canadian approach to species protection under the Species at Risk Act 200350 includes ‘data
deficient’ and ‘special concern’ categories. The review is exploring the value of including additional
levels of threat categories such as ‘data deficient’, ‘near threatened’ (in accordance with the categories
outlined in the most recent IUCN Red List). If the Commonwealth followed this example and provided
protection for ‘data deficient’ or ‘near threatened’ species, this would be consistent with the 1997 Heads
of Agreement which provided that the role of the Commonwealth was not just to ‘promote the recovery
of species and ecological communities that are endangered or vulnerable’ but also to ‘prevent other
species and ecological communities from becoming endangered.51
12.76 Further input from the public would be welcome on these issues.
Emergency listing
12.77 Under s.192 of the Act, the Minister may transfer an extinct species that has been rediscovered to another
category without considering advice from the TSSC. Although this is not an ‘emergency’ category as
such, it does allow emergency decisions to be made in some circumstances.
48
International Union for Conservation of Nature - Species Survival Commission, IUCN red list of threatened species (2000), p.59.
International Union for Conservation of Nature - Species Survival Commission, IUCN red list of threatened species (2000), p.59.
50
More information on the Species at Risk Act 2003 (Can.) is available at: http://www.ec.gc.ca/default.asp?lang=En&n=48D356C1-1
51
Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997)
http://www.environment.gov.au/epbc/publications/coag-agreement/preamble.html at 18 May 2009.
49
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
12.78 The potential for emergency listing of species was also raised in submissions. It was indicated it would be
useful where new information about the health of a species came to light. This approach is currently
available for the listing of National Heritage places under s.324JK and Indigenous heritage under the
Aboriginal and Torres Strait Island Heritage Protection Act 1984, where industry groups have raised
concerns that emergency listing reduces certainty under the Act.
12.79 If emergency listing was to be introduced for species and ecological communities, it would need to be
accompanied with safeguards, such as the criteria currently used under s.324JK for emergency listings of
places on the National Heritage List to ensure the mechanism is not misused.
Delays in listing
12.80 Several submissions argued that the time taken between nominations and listings was too long,
particularly for marine species that were being assessed before the amendment of the Act in 2006. This
was recognised by the 2006-07 ANAO report which covered the listings process. 52 However, the new
nomination and assessment cycle resulting from the EPBC Act amendments in 2006 has provided more
rigorous timetables for assessments, and allowed the TSSC to prioritise nominations with regard to its
workload to ensure it can complete the assessments on the FPAL.
12.81 Assessment timelines for species and ecological communities on the FPAL are based on the level of
complexity, with most having assessment timelines of one year, and most ecological communities have
an assessment timeline of two years. The Department has advised this review that virtually all of the
assessments carried out so far on FPAL items have been completed within the stated timeframes.
Dissatisfaction with the rate of assessment is possibly an indication that the TSSC does not have the
resources to quickly process the number of nominations received. Since February 2007, the TSSC has
received 93 valid nominations, 71 of which have been placed on the FPAL for assessment, 37 of which
have received listing decisions so far. A further 21 listing decisions are due over the next six months.
12.82 There was criticism of the adoption of the themed nomination process for listings and concerns were
raised about the lack of public access to the PPAL and perceived potential abuse of the list, arguing that
s.194K offers a clear opportunity for politicisation of the prioritisation process. 53
12.83 The Australian Government’s record of listing ecological communities – the listing of just 44 ecological
communities when the National Land and Water Resources audit identified 2,891 threatened ecosystems
in Australia,54 was criticised. Ecological communities are inherently complicated and defining and
identifying an ecological community for listing under the EPBC Act is a complex and time consuming
task. Listed ecological communities cover a diverse range of community types ranging from discrete,
localised communities such as aquatic root mat and thrombolite communities in Western Australia to
broad-scale communities such as the White Box-yellow Box-Blakely’s Red Gum Grassy Woodland and
Derived Native Grassland.55
Use of condition classes for ecological community listings
12.84 The view was expressed that the current process of listing ecological communities with definitions that
include different condition categories was outside the powers of the EPBC Act and effectively excluded
areas that were considered by submitters as worthy of conservation.
12.85 The EPBC Act includes a definition of what constitutes a threatened ecological community:
12.86 Ecological community means the extent in nature in the Australian jurisdiction of an assemblage of native
species that:
(a) inhabits a particular area in nature; and
(b) meets the additional criteria specified in the regulations (if any) made for the purposes of this
definition.56
12.87 The regulations establish criteria for determining the threat category. They do not provide guidance on
how to determine the ‘assemblage of native species’ that make up a community. There are clearly
complex scientific arguments to be had here.
52
Australian National Audit Office Audit Report No.31 of 2006-07, The Conservation and Protection of National Threatened Species and
Ecological Communities.
53
Submission 182: Humane Society International, p.20.
54
Paul Sattler and Colin Creighton, Australian Terrestrial Biodiversity Assessment 2002, National Land and Water Resources Audit (2002)
http://www.anra.gov.au/topics/vegetation/pubs/biodiversity/bio_assess_threat.html at 2 April 2009, Chapter 4.
55
Robert JS Beeton and Chris McGrath ‘Developing an Approach to the Listing of Ecological Communities to Achieve Conservation
Outcomes’ (2009) Australasian Journal of Natural Resource Law and Policy 38.
56
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.528.
12.88 The TSSC recognised the difficulties in assessing nominations for listing ecological communities,
including the definition and circumscription of what constitutes an ecological community, the scale at
which communities can be defined and the extent to which different levels of degradation take the
community away from its natural identity. The ecological community definitions for such complex
natural systems need to recognise the on-ground reality that ecological communities usually exist in a
range of states of variable conditions which may be regarded as a surrogate indicator of ecosystem
health.57
12.89 In 2004, following advice from the TSSC, the Minister at the time endorsed working guidelines for the
definition of ecological communities which includes the ability to account for degradation through the
use of condition classes.58 Further, the guidelines assist in ensuring that listings are scientifically credible,
easily understood by the community and capable of being used in natural resource management regimes.
12.90 Concerns were expressed that the adoption of this approach goes beyond the authority provided by the
legislation. It is not clear that this is in fact the case given the vagueness of the current definition.
Focus of biodiversity conservation under the Act
12.91 It was queried in several submissions whether the Act had an appropriate focus with respect to
biodiversity conservation. For example, the CSIRO submission queried whether the focus of the species
and ecological communities’ protection regime should be shifted from ‘protecting individual species to
providing as much opportunity for as many species as possible to survive.’ 59 This could translate into the
creation of a critical habitat list or ecosystems of national significance list, in order to focus conservation
and recovery efforts on a nationally representative system of habitat types. The possible shift towards
landscape approaches under the Act is discussed in Chapter 13 of this report.
Migratory species – birds, mammals and reptiles
Current provisions of the Act
12.92 Listing of marine species is discussed in Chapter 15 of this report. Divisions 2, 3 and 4 of Part 13 of the
Act contain provisions for the identification, listing and protection of migratory species, cetaceans and
marine species.
12.93 Under s.209 of the Act, the Minister must establish a list of migratory species. The migratory species list
is made up of species including:

all species listed in the appendices of the Conservation of Migratory Species of Wild Animals (the
Bonn Convention);

all species included in the annexes of the Japan—Australia Migratory Bird Agreement (JAMBA);

all species included in the China—Australia Migratory Bird Agreement (CAMBA),

all species included in the Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA);
and

all native species identified in a list established under an international agreement that has been
approved by the Minister.
12.94 There is no formal statutory procedure for members of the public to nominate species for inclusion in the
list of migratory species. Members of the public can make suggestions to the Minister for the inclusion of
additional migratory species under one of the relevant international agreements. If a species is listed
under a relevant international agreement, it will be automatically added to the list of migratory species
under the Act. All species on the list of migratory species are matters of national environmental
significance under the Act.
12.95 Under Division 5 of Chapter 13 of the Act, the Minister may decide to make a Wildlife Conservation
Plan for listed migratory species, listed marine species, species of cetaceans and conservation dependent
species.
Robert JS Beeton and Chris McGrath ‘Developing an Approach to the Listing of Ecological Communities to Achieve Conservation
Outcomes’ (2009) Australasian Journal of Natural Resource Law and Policy 38.
58
DEWHA, Ecological Communities: A Way Forward (2004) http://www.environment.gov.au/epbc/publications/pubs/ecologicalcommunities-listing-approach.pdf, at 22 June 2009.
59
Submission 135: CSIRO, p.2.
57
Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
12.96 Cetaceans are given specific protection under the Act in relation to the establishment of the Australian
Whale Sanctuary and permitting under the Act. Issues relating to the Whale Sanctuary are discussed in
Chapter 15 of this report.
Key points raised in public submissions
12.97
A number of submissions raised concerns regarding the current process of protecting migratory species
under the Act, which was considered confusing and in urgent need of review. It was argued that the use
of international lists such as CAMBA and JAMBA are too limited, thereby resulting in migratory
species not being afforded worthy protection under the Act.
12.98
Jeremy Tager also noted that although the Act’s list of migratory species is dictated by the content of
international instruments, some of the inclusions are considered questionable from a taxonomic and
definitional perspective. He also suggested that many species are listed several time under different
names.60
12.99
Several submissions suggested that the protection of international migratory species ought, for
example, to be extended to species that migrate solely across jurisdictional boundaries within Australia.
It was argued that it was the responsibility of the Australian Government to take the lead and provide
effective levels of protection that take into account the special spatial and temporal habitat requirements
of migratory species, protect these animals from localised, regional and cumulative impacts as well as
provide sufficient resources for the evaluation and monitoring of migratory species to determine
conservation targets and detect significant losses. 61
12.100 Several submissions discussed difficulties with the definition of ‘significant impact’ and the cumulative
impacts of habitat destruction on listed threatened species (particularly listed bird species).62 The
definition of significance and mechanisms for dealing with cumulative impacts under the Act are
discussed in Chapters 4 and 10 of this report.
12.101 The criteria used for determining a site of international importance in relation to migratory bird habitat
under the Wildlife Conservation Plan for Migratory Shorebirds 63 are the same as that used by the
Ramsar Convention on Wetlands of International Importance. Some submissions were critical of using
Ramsar criteria on the basis that the thresholds were too high to provide for adequate conservation of
migratory birds.
12.3.3 Discussion of key points raised in submissions
12.102 There are a number of mechanisms in the Act directed specifically towards the conservation, protection
and management of migratory, cetacean and marine species. International efforts include involvement
in the East Asian-Australasian Flyway Partnership, the goal of which is to recognise and conserve
migratory waterbirds in the East Asian - Australasian Flyway for the benefit of people and biodiversity.
The Partnership builds on the successes of the Asia-Pacific Migratory Waterbird Conservation Strategy
and its Action Plans and complements Australia’s international commitments to protect waterbirds and
migratory species under the bilateral migratory bird agreements, the Ramsar Convention and the
Convention on Migratory Species.
12.103 under the Act, ‘important habitat’ is a key concept for migratory species. Defining this term for
migratory shorebirds in Australia is needed to ensure that nationally important sites for migratory
shorebirds are identified and protected. A Policy Statement for Migratory Shorebirds is being
developed which is intended to assist in decision making under the Act with regard to proposals that
may impact on migratory shorebirds. This draft policy will be considered by the review when it
becomes available to the public.
12.104 Issues raised in submissions in relation to the protection and conservation of marine species are
discussed in Chapter 15 of this report.
60
Submission 132: Jeremy Tager, pp.7-8.
Submission 62: Whales Alive.
62
Submission 64: Bird Observation and Conservation Australia.
63
The Wildlife Conservation Plan for Migratory Shorebirds is available at:
http://www.environment.gov.au/biodiversity/migratory/publications/pubs/shorebird-plan.pdf
61