These Fact Sheets are a guide only and are no substitute for legal advice relating to your particular issue. If you need legal advice about your particular issue, please call our FREE Environmental Law Advice Line
Last updated: 1 December 2008
3.3 Commonwealth threatened species law
1 Overview
Key to terms used in this Fact Sheet
Act means the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Commonwealth Environment Department means the Commonwealth Department of Environment, Water, Heritage and the Arts
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Federal Environment Minister means the Commonwealth Minister for the Environment, Heritage and the Arts
TSC Act means the Threatened Species Conservation Act 1995 (NSW).
Where a section but no Act is referred to in this Fact Sheet, the relevant Act is the Environment Protection and Biodiversity Conservation Act 1999.
This fact sheet explains how nationally listed threatened species and ecological communities are protected under Commonwealth law, which is the Environment Protection and Biodiversity Conservation Act 1999.
The EPBC Act protects nationally listed threatened species by:
Creating a process which allows them to be listed;
Requiring activities or developments which are likely to have a significant impact upon a nationally listed threatened species to undergo environmental impact assessment and approval; and
Requiring permits for any action in a Commonwealth area that involves the killing, injuring or taking of a listed threatened species or ecological community.
Commonwealth threatened species law operates in parallel to NSW threatened species law. A development or activity may require assessment and approval under both NSW threatened species law and Commonwealth law. “Threatened species” is a collective term which refers to all the species which are listed, irrespective of their level of endangerment (eg extinct, endangered, vulnerable, etc).
For information on how threatened species are protected under NSW law, see Fact Sheet 6.1 Threatened species (NSW).
Individual native species (including native species of marine fish)1 are eligible to be listed under the EPBC Act under one of the following categories. The category will depend upon their level of endangerment:
Extinct
No reasonable doubt that the last member of the species has died2
Extinct in the wild
Known only to survive in captivity or in a naturalised population3
Critically endangered
facing an extremely high risk (50%) of extinction in the wild in the immediate future4
Endangered
facing a very high risk (20%) of extinction in the wild in the near future5
Vulnerable
facing a high risk (10%) of extinction in the wild in the medium-term future6
Conservation dependent
The species is protected under a specific conservation program, and if the program were to stop, the species would become vulnerable, endangered or critically endangered.7
Additional criteria for listing threatened species in each of these categories are set out in the EPBC Regulations 2000, clause 7.01.
All of these categories are often referred to collectively as “threatened species”.
2.1.2 Ecological community categories
Ecological communities are eligible to be listed under the EPBC Act under one of the following categories. The category will depend upon their level of endangerment:
Critically endangered
Facing an extremely high risk of extinction (50%) in the wild in the immediate future8
Endangered
Facing a very high risk of extinction (20%) in the wild in the near future,9 or
Vulnerable
Facing a high risk of extinction (10%) in the wild in the medium-term.10
Additional criteria for listing threatened ecological communities in each of these categories are set out in the EPBC Regulations 2000, clause 7.02.
2.2 Nomination and listing process
When the EPBC Act was first introduced it allowed any person to nominate a threatened species or ecological community for listing at any time.11 However, in 2007 this provision was repealed and replaced with a more systematic process for deciding which species should be listed, and whether species should be transferred between the categories.12
2.2.1 Annual listing procedure
The nomination and listing process involves an annual cycle that revolves around 12-month periods known as assessment periods. Public nominations are called for each year, which are then assessed through a process which commences on 1 October every year.
The new nomination and listing system involves the following steps:13
The Environment Minister can determine conservation themes
The Environment Minister then invites people to nominate species, ecological communities and key threatened processes by a certain date, and gives the nominations to the Threatened Species Scientific Committee
The Threatened Species Scientific Committee then prepares a list of items that it thinks should be assessed ( proposed priority assessment list ) and gives it to the Environment Minister
The Environment Minister finalises the list of items that will be assessed ( finalised priority assessment list )
The Threatened Species Scientific Committee invites people to make comments on the finalised priority assessment list
The Threatened Species Scientific Committee carries out an assessment of the finalised list and gives the assessments to the Environment Minister
The Environment Minister makes the final decision as to whether a species, ecological community or key threatening process is listed or not.
If the Minister decides against listing a particular species, ecological community or threatening process, then, within 10 days of making the decision, the Minister must publish their decision on the Internet and give the person who nominated the species reasons why the species, community or process was not listed.14
Click here to go to the Commonwealth Environment Department website on nominating a species, including the species nomination forms and guidelines.
2.3 What are the implications of listing?
2.3.1 Summary
Once a species or ecological community has been listed as threatened, it can trigger the following actions:
The nomination process is quite technical. If you wish to nominate a species yourself you will need detailed evidence to support your nomination. There are some conservation groups who are experienced in preparing nominations for threatened species.
If you think a particular species, population or ecological community should be listed, and you want help, you could contact:
The Humane Society International
Threatened Species Network (through WWF Australia).
If the species is on Commonwealth land (and no EPBC Act approval has been granted), a permit is required to kill, injure, take, trade, keep or move the threatened species (see Permits below);
Activities or developments (anywhere in Australia) which are likely to significantly affect a listed threatened species or ecological community will require assessment and approval under the EPBC Act (see below);
The Environment Minister can choose to list the species' habitat as “critical habitat”;
The Environment Minister can choose to prepare a recovery plan for the species or community (see paragraph 2.3.3 below).
2.3.2 Critical habitat
If a species or ecological community is listed as threatened, the Environment Minister can choose to list its habitat as “critical habitat”.15 In deciding whether to list habitat as critical, the Minister can consider things such as whether the habitat is used for foraging, breeding, nesting or roosting, whether it is used as a corridor to move between sites, and whether the site is necessary for recolonisation.16
The Environment Minister can declare any land within Australia to be critical habitat, but if the land is not a Commonwealth area, the Minister must consult with the owner of the property where the habitat is located.17
There are two consequences under the EPBC Act which flow from a listing of critical habitat:
If the habitat is in or on a Commonwealth area, it is an offence for a person to do something if they know that it will significantly damage the critical habitat,18 and
The Commonwealth must not sell or lease land that contains critical habitat without a covenant in the contract which protects the habitat.19
Once a species or ecological community is listed as threatened, the Environment Minister can decide to prepare a recovery plan for it. A recovery plan sets out what must be done to stop the decline of, and to support the recovery of, a listed threatened species or ecological community.20
It is not obligatory for a recovery plan to be prepared once a species or ecological community is listed as threatened. However the Environment Minister must make a decision on whether to have one prepared within 90 days of the species or community being listed.21 In making this decision, the Environment Minister must have regard to the advice of the Threatened Species Scientific Committee as to whether there should be a recovery plan given at the time that the Committee recommended the species be listed.22
It is not an offence for an individual to breach a recovery plan. The plan simply guides Commonwealth action. In particular, a Commonwealth agency must not contravene a recovery plan, and the Commonwealth must implement the plan to the extent to which it applies in Commonwealth areas.23
In addition to threatened species, there are three other categories of species which are specifically protected under the EPBC Act. These are described below.
3.1 Migratory species
In addition to nationally listed threatened species, some migratory species are also protected under the EPBC Act. Migratory species are those species which migrate to, or pass through or over, Australian territory on their annual migrations. Only those migratory species which are protected under international agreements can be listed.
Examples of categories of migratory species which are protected include:
Birds – albatrosses, terns, plovers and egrets
Mammal – whales, dugongs
Reptiles – some crocodiles.
Some migratory species which are native to Australia can also be listed as nationally threatened species. The regime for listing and protecting migratory species under the EPBC Act is different to that of threatened species.
The Environment Minister can make a wildlife conservation plan for listed migratory species (but not if they are listed as threatened).24
For more information on how migratory species are protected under the EPBC Act, see Fact Sheet 3.1 EPBC Act.
Some marine species are also protected under the EPBC Act, even if they are not listed as threatened.
The EPBC Act protects marine species (called “listed marine species”) within the following categories:25
Sea snakes
Seals
Crocodiles
Dugongs
Marine turtles
Leatherback turtles
Seahorses, sea-dragons and pipefish
Birds in marine areas (eg penguins, albatross, pelican, ibis, etc).
3.2.1 Permits for marine species
Listed marine species are protected through a permit system.26 A person is guilty of an offence if they kill or injure a member of a listed marine species in a Commonwealth area.27 It is also an offence to take, trade, keep or move a listed marine species which is in a Commonwealth area.28
There is a long list of defences for these offences.29 For example, it is a defence if the person:
Had a permit from the Environment Minister to kill, take or otherwise deal with the listed marine species
Had an approval under the EPBC Act
Took the action in a humane manner to relieve or prevent the suffering of the animal (eg by releasing it from a net).
The Environment Minister can make a wildlife conservation plan for listed marine species (but not if they are listed as threatened).30
Note: Marine species which are also listed as a threatened species will be protected under the threatened species provisions, rather than the marine species provisions, eg a development which is likely to have a significant impact on a threatened species will trigger the environmental impact assessment provisions of the EPBC Act: see below.
Whales, dolphins and porpoises (marine mammals, or cetaceans) enjoy special protection under the EPBC Act through the Australian Whale Sanctuary and under a specialised permit system.31
The EPBC Act establishes the Australian Whale Sanctuary.32 The Sanctuary covers waters within Australia's exclusive economic zone, which is up to 200 nautical miles from the Australian coast, but does not generally include coastal waters within three nautical miles of the coast.33
It is an offence to kill, injure, take, trade, or interfere with a cetacean (whale, dolphin or porpoise) within the Australian Whale Sanctuary.34
There is a long list of circumstances where these offences do not apply which include:35
If the activity was authorised by a permit
Whale watching (in accordance with the regulations), but not for commercial purposes
Actions which are covered by an approval under the EPBC Act.
Permits regarding whales, dolphins and porpoises are issued by the Environment Minister.36 Decisions regarding permits can be reviewed (appealed) in the Administrative Appeals Tribunal, but not if the decision was made by the Minister personally.37
The EPBC Regulations contain a range of offences and regulations specifying things such as how close boats and aircraft can come to whales, dolphins, porpoises and their calves, prohibitions on feeding, touching and swimming with cetaceans, and how whale watching must be carried out.38
The Environment Minister can make a wildlife conservation plan for cetaceans in the Australian Whale Sanctuary.39
Saving whales in the Australian Whale Sanctuary
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3
The EDO acted for the Humane Society International Inc (HSI) against Japanese whaling company, Kyodo Senpaku Kaisha Ltd (Kyodo) in a long running case that concluded in 2008.
The proceedings were brought in the Federal Court of Australia. HSI sought a declaration that Kyodo breached the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act 1999 ) by whaling in the Australian Whale Sanctuary adjacent to Antarctica and an injunction to prevent them from continuing to kill whales there. In response, Japan claimed that it does not recognise Australia's sovereignty over the Antarctic waters which constitute the whale sanctuary.
In a judgement handed down on 15 January 2008, His Honour Justice Allsop made a declaration that Kyodo was in breach of Australian law by whaling in the Australian Whale Sanctuary and granted HSI an injunction to restrain Kyodo from further breaches of the EPBC Act 1999.
Key threatening processes can be listed by the Environment Minister under the EPBC Act.40 A process is defined as a key threatening process if it threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community.41
Listed key threatening processes include:
predation by the European Red Fox
competition and land degradation by feral rabbits and feral goats
incidental bycatch of sea birds (eg Albatross) during longline fishing operations
The process for adding new key threatening processes to the list is the same as the new 12-month revolving assessment process for adding threatened species (see above) in that the public can nominate new key threatening processes for consideration by the Threatened Species Scientific Committee within the annual timeframe.
The nomination process is set out in EPBC Regulations 2000, clause 7.06.
Once a threatening process is listed under the EPBC Act it triggers the need for a threat abatement plan if it is shown to be 'a feasible, effective and efficient way' to abate the threatening process.
4.2 Threat abatement plans
The listing of a key threatening process can trigger the need for a threat abatement plan. A threat abatement plan sets out what needs to be done in order to reduce a particular key threatening process to an acceptable level in order to maximise the chances of the long-term survival of native species and ecological communities affected by the process.42
The listing of a key threatening process does not automatically require the preparation of a threat abatement plan. Within 90 days of a process being listed, the Environment Minister must decide whether or not having a threat abatement plan is a feasible, effective and efficient way to reduce the threat.43
There are no criteria to guide this decision, but the Environment Minister must seek advice from the Threatened Species Scientific Committee and from affected State and Territory governments.44 There is no requirement for the Environment Minister to consult the public, but the Minister must publish reasons for the final decision (either way) and must reconsider the matter within 5 years.45
It is not an offence for an individual to breach a threat abatement plan. The plan simply guides Commonwealth action. In particular, a Commonwealth agency must not contravene a threat abatement plan, and the Commonwealth must implement the plan to the extent to which it applies in Commonwealth areas.46
Threat abatement plans include plans covering land degradation caused by goats and rabbits, dieback and incidental bycatch of seabirds (Albatross) during long line fishing operations.
It is an offence to harm nationally listed threatened species without a permit. However, a permit is only required if the threatened species or ecological community is in or on a Commonwealth area. Note: if the threatened species or ecological community is on non-Commonwealth land, then the assessment and approval provisions will apply – see Threatened Species and Development below.
Permits regarding nationally listed threatened species are issued by the Environment Minister under the EPBC Act.47
5.1.1 What is a “Commonwealth area”?
A “Commonwealth area” is:48
Land owned by the Commonwealth or a Commonwealth agency, including airspace over the land
Land held under lease by the Commonwealth or a Commonwealth agency (including airspace)
Land in an external Territory and in the Jervis Bay Territory
The coastal sea, continental shelf, and waters within Australia's exclusive economic zone.
5.1.2 Offence to kill, injure, take or trade
A person is guilty of an offence if they take an action that results in the death or injury of a member of a listed threatened species or part of an ecological community in a Commonwealth area.49 It is also an offence to take, trade, keep or move a listed threatened species or part of an ecological community which is in or on a Commonwealth area.50
5.1.3 Defences
There is a long list of defences to these offences, including:51
If the person holds a permit to take the action
If the action is done in accordance with a recovery plan
If the action is covered by an approval under the EPBC Act
If the action was taken in a humane manner and was reasonably necessary to relieve or prevent the suffering of the listed threatened species.
5.2 Applications for permits
Applications for licences regarding threatened species are made to the Federal Environment Minister, who is responsible for issuing permits.52
An applicant who is unhappy with a decision to issue, refuse, vary, revoke, suspend or impose a condition on a permit can seek a review of the decision (appeal) in the Administrative Appeals Tribunal.53 This right of review does not apply if the Environment Minister made the decision personally, and not through a delegate.54
6 Threatened species and development
Activities and developments that are likely to have a significant impact on a threatened species or ecological community may be “controlled actions” under the EPBC Act, and cannot proceed unless they are assessed and approved by Environment Minister under the EPBC Act.55 This applies to threatened species and ecological communities wherever they are found in Australia, not just within Commonwealth areas.
It is an offence for a person to take an action that has, or will have, a significant impact on a listed threatened species or ecological community without approval or some other listed authorisation.56
For more information on how the assessment and approval process works, see Fact Sheet 3.1 on the EPBC Act.
Remember that a threatened species or ecological community can be protected under both NSW law and Commonwealth law at the same time. If you are concerned about a particular species, you should check both the NSW and Commonwealth threatened species databases.
The EPBC Act allows for the Commonwealth to enter into bilateral (assessment) agreements with each State under which the Commonwealth can accept an environmental assessment done by the State if the assessment was done in accordance with the agreement.57 Where this occurs, the assessment under State law replaces the need for assessment under the EPBC Act. After assessment, the proposed action still requires approval from the Commonwealth Environment Minister.
The purpose of bilateral agreements is to reduce duplication of environmental assessment between the Commonwealth and States.
6.1.1 NSW Bilateral Agreement relating to environmental impact assessment
On 18 January 2007, the Commonwealth and NSW entered into a bilateral (assessment) agreement for a term of 5 years.
Controlled actions which take place in NSW and which are assessed in the manner specified by the Agreement do not require additional environmental assessment under the EPBC Act. For example, a species impact statement which is prepared under the Threatened Species Conservation Act 1995 (NSW) might be relied upon, in addition to any additional public comment and notification provisions in the Agreement.
The Agreement between the Commonwealth and NSW relating to environmental assessment recognises that in NSW most developments that qualify for assessment under the EPBC Act would otherwise be assessed under the NSW Environmental Planning and Assessment Act 1979. The Agreement therefore expressly endorses the environmental assessment processes found in Part 3A, Part 4 and Part 5 of the Environmental Planning and Assessment Act 1979. However, the Agreement lists a number of additional requirements that must be met if a ‘controlled action' is to be assessed under one of those parts.
Similarly, with regards to threatened species, the Agreement endorses the assessment procedures found in Part 6 of the NSW Threatened Species Conservation Act 1995, including a species impact statement. It also endorses the assessment procedures found in Part 7A of the Fisheries Management Act 1994, including a species impact statement.
7 Enforcement
The Environment Minister, through the Commonwealth Environment Department, is responsible for enforcing the provisions of the EPBC Act.
If you think that someone has unlawfully interfered with a threatened species or ecological community, you should report it to the Compliance and Enforcement Branch of the Commonwealth Environment Department.
The Environment Minister can make a conservation order to protect nationally listed threatened species or ecological communities in Commonwealth areas.58
7.2 Court action
The Environment Minister has various enforcement powers to protect threatened species, including bringing a criminal prosecution, or a civil enforcement action such as an injunction or declaration that the EPBC Act has been breached. Enforcement cases are heard in the Federal Court.
If the Environment Minister fails to take action, it is possible for an individual or organisation to bring proceedings to enforce the EPBC Act, if they are:
An individual whose interests are affected, or who has been engaged in activities to protect the environment during the previous two years (called an “interested person”),59 or
An organisation (incorporated in Australia) whose interests are affected, or which, during the previous 2 years, has had the protection of the environment as one of its objects and purposes and which has been engaged in environmental protection.60
EPBC Act, s 180.
EPBC Act, s 179(1).
EPBC Act, s 179(2).
EPBC Act, s 179(3).
EPBC Act, s 179(4).
EPBC Act, s 179(5).
EPBC Act, s 179(6)(a).
EPBC Act, s 182(1).
EPBC Act, s 182(2).
EPBC Act, s 182(3).
EPBC Act, s 191 (since repealed).
Environment and Heritage Legislation Amendment Act (No 1) 2006.
EPBC Act, s 194B – 194T.
EPBC Act, s 194Q(8).
EPBC Act, s 207A.
EPBC Regulations 2000, cl 7.09
EPBC Regulations 2000, cl 7.09(3)(b).
EPBC Act, s 207B.
EPBC Act, s 207C.
EPBC Act, s 270(1), EPBC Regulations 2000, cl 7.11.
EPBC Act, s 269AA(1).
EPBC Act, s 269AA(3), 189(1B)(c).
EPBC Act, s 268, 269.
EPBC Act, s 285.
EPBC Act, s 248.
EPBC Act, s 257 – 264.
EPBC Act, s 254, 254A.
EPBC Act, s 254B, 254C, 254D, 254E.
EPBC Act, s 255.
EPBC Act, s 285.
EPBC Act, Part 13, Div 3, ss 224 – 247.
EPBC Act, s 225.
EPBC Act, s 225(2), 227.
EPBC Act, s 229, 229A, 229B, 229C
EPBC Act, s 231.
EPBC Act, s 237, 238.
EPBC Act, s 243A.
EPBC Regulations 2000, Part 8, cll 8.01 – 8.12.
EPBC Act, s 285.
EPBC Act, s 183.
EPBC Act, s 188(3).
EPBC Act, s 271(1), and EPBC Regulations 2000, cl 7.12.
EPBC Act, s 270A(1), (2).
EPBC Act, s 270A(3).
EPBC Act, s 270A(8), 270A(1)(b).
EPBC Act, s 268, 269.
EPBC Act, s 201.
EPBC Act, s 525 defines “Commonwealth area”.
EPBC Act, s 196, 196A.
EPBC Act, s 196B, 196C, 196D, 196E.
EPBC Act, s 197.
EPBC Act, s 200, 201.
EPBC Act, s 206A.
EPBC Act, s 206A(2).
EPBC Act, s 18, 18A, 19
EPBC Act, s 18, 18A, 19, 517A.
EPBC Act, Part 5, ss 45 – 65A.
EPBC Act, s 464.
EPBC Act, s 475(6). An individuals can take action on behalf of an unincorporated association: s 475(1)(c).
