EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 334

 

Issued by the Authority of the Minister for the Environment and Water Resources

 

Environment and Heritage Legislation Amendment Act (No. 1) 2006

 

Environment and Heritage Legislation Amendment Act Regulations 2007

 

The Environment and Heritage Legislation Amendment Act (No. 1) 2006 (EHLA Act) provides for a range of amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and related legislation to make the EPBC Act more efficient and effective, to allow for greater use of strategic approaches, and to provide greater certainty in decision-making.

 

Schedule 2 of the EHLA Act provides for a range of application, saving and transitional provisions that establish how various projects, plans, listing nominations and processes that were commenced under the provisions of the EPBC Act prior to the commencement of amendments contained in the EHLA Act are to be handled once the amendments take effect.

 

Sub-item 58(1) to Schedule 2 of the EHLA Act provides that the Governor-General may make regulations dealing with matters of a transitional, saving or application nature relating to the amendments made by the EHLA Act. In addition, sub-item 58(2) provides that regulations made under the item may take effect from a date before the regulations are registered despite subsection 12(2) of the Legislative Instruments Act 2003 (LI Act) which states that a Legislative Instrument cannot commence before the date of registration if it affects the rights of, or liabilities imposed on, a person.

 

The Regulations are intended to rectify an error that has resulted in the repeal of instruments for listing eight ecological communities and deleting one ecological community on the list of threatened ecological communities. The purpose of the Regulations is to provide for an additional application and savings provision that allows decisions to be made by the Minister for the Environment and Water Resources on whether the specific ecological communities are eligible to be included on the list of threatened ecological communities established under the EPBC Act. The specific ecological communities were listed under the EPBC Act but were technically repealed due to the operation of section 32 of the LI Act, where there had been no policy intention to repeal.

 

Section 32 of the LI Act provides that an instrument that is not lodged for registration on or before the backcapture deadline is taken to have been repealed on the day after the backcapture deadline. Although the repeal became effective from 16 October 2005, the fact that these instruments had not been registered and had been repealed in accordance with section 32 of the LI Act was not discovered until early March 2007.

 

There is currently no mechanism to effect the rapid relisting of items that have been repealed. A rapid relisting under such circumstances is essential as the mechanisms contained in the EPBC Act that provide protection for communities no longer apply. In the absence of such legislative protection measures, any repealed ecological communities remain at risk from significant adverse impacts, for example activities such as land clearing.

 

The Threatened Species Scientific Committee (Scientific Committee) confirmed to the Minister, in March 2007, that its original listing advices pertaining to the eight ecological communities repealed in this case were still relevant, and that the ecological communities remain threatened and eligible for inclusion on the list of threatened ecological communities.

 

The Regulations will enable the remaking of the listing instruments in relation to the repeal of ecological communities under the LI Act. The Regulations will allow for a decision to be made based on the original nominations and the March 2007 advice from the Scientific Committee. Providing a mechanism to remake the listing instruments, utilising the old listing process contained in the EPBC Act prior to the recent amendments, will enable the ecological communities to be included on the list using the quickest possible mechanism.

 

To enable the Scientific Committee’s advice of March 2007 to be validly used in relation to the nominations, the Regulations will be taken to have commenced on 20 February 2007. This will enable the Scientific Committee’s advice to be regarded as advice for the purposes of the old process.

 

The Department of the Environment and Water Resources did not undertake consultation on these regulatory amendments as they are minor and of a machinery nature. The regulations only provide for the use of the previous listing mechanism contained in the EPBC Act to enable the timely re-listing of ecological communities that were de-listed due to a specific administrative problem.

 

The Regulations are outlined in more detail in the Attachment.

 

The EHLA Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 

ATTACHMENT

 

Details of the Environment and Heritage Legislation Amendment Act Regulations 2007

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Environment and Heritage Legislation Amendment Act Regulations 2007.

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to be taken to have commenced on 20 February 2007.

 

Regulation 3 – Definition

 

This regulation establishes definitions of the following terms:

commencement day, ecological community, old process, species commencement time and the Act.

 

Regulation 4 – Application and savings – inclusion in list of threatened ecological community

 

This regulation provides that the process for listing of an item on the list of threatened ecological communities that applied before the amendments to the EPBC Act, contained in the EHLA Act, came into force will apply to those ecological communities that were previously on the list but were repealed due to the operation of section 32 of the Legislative Instruments Act 2003.