Environment Protection and Biodiversity Conservation Act 1999 - section 269A - Instrument repealing and adopting Recovery Plans (10/11/2006) (TAS)

The instrument rests on two main statutory concepts referenced by name: the repeal power under subsection 33(3) of the Acts Interpretation Act 1901 and the adoption power in subsection 269A(7) of the EPBC Act. The instrument uses subsection 33(3) to repeal an earlier recovery plan that had previously been adopted; the instrument uses subsection 269A(7) to adopt Tasmanian-made recovery plans as recovery plans for listed threatened species under the EPBC Act. The document therefore operationalises the concept of formal "adoption" of non‑Commonwealth documents as Commonwealth recovery plans, by ministerial instrument.

"Recovery plan" is the organising concept for the adopted documents. Each adopted plan bears the label "Recovery Plan" or "Fauna Recovery Plan" or "Flora Recovery Plan" and a plan period (2006-2010) in the title. The instrument adopts nine such Tasmanian recovery plans and explicitly links each listed threatened species or species group to the particular document adopted. The plans vary by scope: some are single-species plans (for example, the Fauna Recovery Plan: Tasmanian Giant Freshwater Lobster (Astacopsis gouldi) 2006-2010), some are group plans covering species complexes (for example, Recovery Plan: Tasmanian Galaxiidae 2006-2010 covering multiple Galaxias species), and one is an extensive flora plan covering a list of Tasmanian orchids, conveyed in the instrument as a long concatenated list of taxa.

Two structural points flow from the instrument’s text. First, the instrument attributes the authorship or provenance of each adopted plan to a Tasmanian agency, the Threatened Species Section of the Department of Primary Industries and Water, Hobart; the instrument therefore adopts external (state) documents rather than producing new Commonwealth-authored recovery plans. Second, each adopted plan is a time-bound document (2006-2010) as recorded in the plan title. The instrument brings those timebound documents into statutory effect on the date of signing, but it does not state what legal or administrative steps follow when the plan period ends.

The instrument is procedural: it does not itself set strategy, specify recovery actions, assign implementation budgets, or create enforcement measures. It does, however, change the legal status of specified Tasmanian documents by adopting them under the EPBC Act’s adoption provision, thereby making them "recovery plans" for the listed threatened species under the Commonwealth instrument. The change in statutory status is immediate: the repeal and adoptions take effect on the date stated (the date of signing, 10 November 2006).

Direct legal actors named in the instrument are: the Minister for the Environment and Heritage (Ian Gordon Campbell), who exercises the adoption and repeal actions; and the Tasmanian agency that prepared the adopted recovery plans, identified as the Threatened Species Section, Department of Primary Industries and Water, Hobart. The instrument lists the Tasmanian documents as the source of the recovery plans and explicitly states that they were "made by the Tasmanian agency specified opposite those listed threatened species." Therefore the immediate administrative effect concerns those Tasmanian documents and the Tasmanian agency that produced them.

Beyond named actors, the instrument affects any person or entity whose actions interact legally with recovery plans under the EPBC Act. The instrument does not itself list broader affected parties or describe downstream statutory consequences; it does however change which documents are, by ministerial instrument, a Commonwealth recovery plan for the listed threatened species. Any party that, after the date of signing, needs to refer to, comply with, account for, or take into account a "recovery plan" under Commonwealth decision‑making will now deal with the Tasmanian documents specified in the instrument. That group probably includes, but is not limited to, public agencies, private landholders, developers, research bodies and consultants working in relation to the named species or ecological communities. The instrument itself contains no separate regulatory text imposing direct duties on such parties; it changes the legal landscape by conferring statutory recovery plan status on particular Tasmanian documents.

The list of affected species and species-groups is extensive. The adopted plans cover (by the instrument’s list): Astacopsis gouldi (Tasmanian Giant Freshwater Lobster); Pardalotus quadragintus (Forty‑Spotted Pardalote); a suite of Galaxias species and related small freshwater fishes grouped under "Tasmanian Galaxiidae"; Lomatia tasmanica (King’s lomatia); Ranunculus prasinus (Tunbridge buttercup); Eucalyptus morrisbyi (Morrisbys gum); two alpine karst flora species (Oreoporanthera petalifera and Sagina diemensis); two Xanthorrhoea grass-tree species (X. arenaria and X. bracteata); and an extended list of Tasmanian orchid taxa captured in the "Threatened Tasmanian Orchids 2006-2010" plan. The instrument expressly repeals the earlier Forty‑Spotted Pardalote 1991-1997 recovery plan as having been previously adopted, with the repeal effective on the date of signing.

The instrument does not specify funding or implementation responsibilities in dollar terms. It names the state agency that produced the plans, but it does not state whether implementation remains for that agency, whether the Commonwealth will fund implementation, or whether other parties must act. The instrument therefore affects the statutory landscape and document status but leaves the allocation of implementation action and costs unset in the text of the instrument itself.

The instrument itself is short and procedural and does not create new operational duties or rights in its text. Its operative effect is to change the statutory status of specified documents: it repeals one adopted recovery plan (the Forty‑Spotted Pardalote 1991-1997 plan) and adopts nine Tasmanian recovery plans as recovery plans under subsection 269A(7) of the EPBC Act. The text therefore creates, in legal form, that those Tasmanian documents are to be treated as recovery plans because the Minister has adopted them under the specified subsection. The instrument does not articulate concomitant duties, enforcement mechanisms, or rights for third parties in the instrument itself.

Practically, the key duty created by the instrument is procedural: anyone obliged, by other statutory instruments or decision-making processes that refer to "recovery plans," must now consult the adopted Tasmanian documents identified in the instrument when dealing with the listed species. The instrument does not enumerate who must consult the plans, when consultation is required, or the legal consequences of compliance or non‑compliance,those details are outside the four corners of the instrument and lie in the EPBC Act framework and administrative practice. What the instrument does specify is which documents carry the label "recovery plan" for the listed species from the date of signing.

By naming the specific Tasmanian agency as the maker of the adopted documents, the instrument allocates authorship and provenance. This has practical effects for who should be approached for clarifications, updates or implementation queries: the Department of Primary Industries and Water in Hobart is the stated originator of the adopted plans. The instrument does not, however, itself transfer or create statutory enforcement powers to that Tasmanian agency; nor does it create contractual or statutory rights in private parties. The adopted plans themselves (the Tasmanian documents) may contain operational duties, recommended actions, roles and responsibilities, and timelines for recovery actions for the species covered; those contents are not reproduced in the instrument. The instrument’s text directs readers to those specified plans by title and maker, thereby creating an obligation,practical rather than expressed in the instrument,to consult the adopted documents to ascertain any operational duties set out in them.

The instrument also removes a previously adopted plan for the Forty‑Spotted Pardalote (1991-1997). That repeal terminates the status of the 1991-1997 document as a Commonwealth‑adopted recovery plan on the date of signing. In effect, the new Forty‑Spotted Pardalote plan (2006-2010) listed among the adopted documents replaces the earlier adopted plan; the instrument therefore reorders the set of documents that count as recovery plans under the EPBC Act for that species.

Readers should note that the instrument does not set penalties or sanctions or outline appeal rights; it is a ministerial adoption/repeal instrument rather than an instrument creating new offence or compliance regimes. Any duties, rights or enforcement pathways associated with the recovery plans will be found in the EPBC Act or in the text of the adopted recovery plans themselves.

The instrument contains no penalty clauses, enforcement provisions, or express compliance sanctions. Its operative language is administrative: repeal of an earlier adopted recovery plan (Forty‑Spotted Pardalote 1991-1997) and adoption of nine Tasmanian-made recovery plans under subsection 269A(7) of the EPBC Act, with the effective date being the date of signing (10 November 2006). It does not create new offences or specify enforcement mechanisms. Where penalties or enforcement consequences might flow from the adoption of recovery plans, those consequences are not articulated in the instrument; they would, if applicable, arise from the EPBC Act as a whole or from provisions within the recovery plans themselves (the adopted Tasmanian documents may contain recommended actions, but the instrument does not reproduce any enforceable sanctions).

Because the instrument explicitly cites subsection 269A(7) of the EPBC Act as the adoption power it is exercising, any statutory legal effects that arise from recovery plan status under the EPBC Act must be investigated in the EPBC Act text. The instrument does not set out those effects. The instrument also does not allocate enforcement responsibility to any named enforcement agency, nor does it indicate that compliance with the recovery plans is to be policed by the Commonwealth or by the Tasmanian Department of Primary Industries and Water. The only enforcement-related action present in the instrument is the administrative removal or addition of documents from the set of documents that the Commonwealth recognises as recovery plans.

For practitioners and affected parties, the practical upshot is that this instrument changes which documents will be referenced when an enforcement or compliance question arises that turns on the existence or content of a "recovery plan" for a particular listed threatened species. However, the instrument itself does not specify how alleged breaches of recovery plan guidance should be treated or what penalties, if any, will apply. To determine enforceable consequences, and whether non‑compliance with a recovery plan could give rise to sanctionable conduct under Commonwealth law, interested parties must consult the EPBC Act and any other relevant statutory or regulatory provisions, and the texts of the adopted recovery plans for internal provisions regarding monitoring, reporting, or recommended action.

In short, the instrument changes documentary status but does not create or specify any new penalty regime. Any enforcement consequences will depend on provisions elsewhere in Commonwealth or state law or on the content of the adopted recovery plans themselves.

The instrument expressly invokes and interacts with two other statutory instruments by reference: subsection 33(3) of the Acts Interpretation Act 1901 as the mechanism for repeal, and subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 as the mechanism for adoption. Those references are the only statutory cross‑references contained in the instrument. The instrument therefore operates as a piece of delegated administrative action that sits within the statutory architecture of the EPBC Act (for adoption) and the general rules on interpretation and repeal in the Acts Interpretation Act (for the repeal).

Operational interaction with other laws is otherwise implicit rather than expressed. By adopting Tasmanian recovery plans under the EPBC Act provision it cites, the instrument places specified Tasmanian documents into the Commonwealth statutory framework in the sense that they are formally recorded as recovery plans under the EPBC Act. The instrument does not, however, specify how those adopted plans interact with state law, native title, land tenure regimes, planning approvals, or other statutory frameworks. The instrument names the Tasmanian Department of Primary Industries and Water as the maker of the adopted documents, which suggests a cross‑jurisdictional relationship between state-produced plans and Commonwealth recognition. The instrument does not resolve conflicts or inconsistencies between the adopted Tasmanian documents and any other statutory provisions; those questions are left for the parent legislation or future administrative action.

The instrument also implicitly replaces an earlier adopted document for the Forty‑Spotted Pardalote. Repealing the 1991-1997 recovery plan and adopting a 2006-2010 plan indicates a temporal update to the set of recovery plans recognised under the EPBC Act. The instrument does not state whether the replaced plan is superseded in entirety for all legal purposes, nor does it address whether any actions taken under the earlier plan remain valid. These are interactions with prior documents that the instrument effects in substance by repeal and adoption but does not expressly describe in legal consequence.

Because the instrument furnishes no funding, implementation or enforcement detail, its interaction with administrative budgets, appropriation law or intergovernmental funding regimes is silent. Any financial or administrative interplay with other Commonwealth or state instruments is therefore not addressed in the text of this instrument.

Practitioners should treat the instrument as a node in the network of EPBC‑related administrative actions: it alters which documents are the operative "recovery plans" under federal recognition for the named species, but it leaves open how those documents interact with other statutes, planning instruments, approvals, or resource management regimes. Determining the practical cross‑statutory effects requires consulting the EPBC Act and the adopted plan texts themselves.

The instrument itself is an amendment to the set of documents that the Commonwealth recognises as recovery plans under the EPBC Act. It effects two changes on the date of signing, 10 November 2006: (1) repeal of the earlier adopted Recovery Plan for the Forty‑Spotted Pardalote (Pardalotus quadragintus) 1991-1997, using subsection 33(3) of the Acts Interpretation Act 1901; and (2) adoption, under subsection 269A(7) of the EPBC Act, of nine Tasmanian recovery plans produced by the Threatened Species Section of the Tasmanian Department of Primary Industries and Water, Hobart.

The instrument records the titles and plan periods of the adopted documents as 2006-2010, thereby implying the plans are timebound. The instrument itself does not specify any mechanism for further amendment or updating of those adopted plans after their stated plan period expires; nor does it state whether the Minister must renew, extend, replace or repeal the plans at or after expiry. The instrument does not include a schedule of subsequent amendment powers or a standing direction that would automatically renew or extend plan effect. Consequently, this instrument represents a snapshot in time: it repeals and adopts the named documents effective from the date of signing, but any later amendments to the status of those recovery plans would require further instruments or statutory action.

The instrument thereby should be read as effecting the immediate administrative amendment to the Commonwealth list of adopted recovery plans as at 10 November 2006. The instrument does not recite prior instruments by title other than the single repeal of the forty‑spotted pardalote plan. No other amendment history is recorded in the text. For a complete chronological picture of all adoptions and repeals, one would need to consult the Commonwealth register of such instruments or the EPBC Act’s history of adopted recovery plans; the present instrument supplies only the changes it implements on 10 November 2006.

In sum, the instrument amends the corpus of adopted recovery plans by deleting one earlier adopted plan and by admitting nine state-made plans as adopted Commonwealth recovery plans. It leaves open the question of subsequent amendment cycles for those adopted documents.

The instrument contains no reference to litigation, disputes, legal proceedings, rulings, or court decisions. It is an administrative instrument, and the text includes only the ministerial acts of repeal and adoption. The instrument records the date of signing and the identity of the minister who signed it (Ian Gordon Campbell). There is no indication within the instrument of any legal challenge, appeal, or judicial interpretation related to the actions taken in this instrument.

Because the instrument does not record any litigation history, users seeking to understand whether the adoption or repeal it effects has been subject to challenge must consult external records, such as court databases or administrative review decisions. The instrument itself does not furnish that information, and no cases are named in the instrument text.

Where litigation might arise,in relation to the content of the adopted recovery plans, the authority to adopt particular documents, or the consequences of recognising certain recovery plans under the EPBC Act,that litigation record is not captured in this instrument. The instrument is silent on legal contestation and therefore provides no direct litigation history.

Several practical pitfalls and attention points arise from the instrument as drafted.

1. Effective date is immediate. The instrument states that the repeal of the 1991-1997 Forty‑Spotted Pardalote plan and the adoption of the 2006-2010 plans will "take effect on the date of signing of this instrument" and that the adopted recovery plans "will come into force on the date of signing of this instrument." That date, recorded at the end of the instrument, is 10 November 2006. Parties must therefore treat the adopted documents as operative for legal recognition from that date. Do not assume transition periods or grace periods are provided by the instrument text.

2. The instrument adopts state‑made plans as Commonwealth recovery plans. It adopts documents "made by the Tasmanian agency specified opposite those listed threatened species." That means the Commonwealth recognition attaches to the exact text of those Tasmanian documents. Practitioners should obtain the precise adopted documents (the Tasmanian plan PDFs or printed copies) to confirm content; relying on summaries or secondary descriptions risks missing operative detail included in the adopted documents.

3. Timebound plan periods may create ambiguity after expiry. Each adopted plan in the instrument title shows a plan period of 2006-2010. The instrument does not state what happens after 2010. Users should not assume the plans continue in force beyond their stated plan period without further ministerial action; the instrument itself gives no forward‑looking provision. This creates practical risk in long‑term planning or approvals that hinge on the content of a recovery plan beyond 2010.

4. The instrument contains formatting and typographical issues that can cause misreading. For example, the instrument repeats species lists in a concatenated way (notably the long list of orchid taxa) and shows at least one misspelling/mis‑transcription of the Forty‑Spotted Pardalote species name ("Pardalotus quadraqintus" in one place). Practitioners should cross‑check the species nomenclature and consult the original Tasmanian documents to confirm exact species lists and correct scientific names rather than rely solely on the table transcription in the instrument.

5. The instrument does not specify implementation responsibilities or funding. It adopts the plans and names the Tasmanian agency as maker; it does not say who must implement the actions in the plans, how implementation is to be funded, whether the Commonwealth will fund Tasmanian implementation, or whether parties are obliged to undertake specific actions. Where recovery plans impose recommended measures, the practical creditability of those measures will depend on allocation of resources and intergovernmental arrangements not discussed in the instrument.

6. No enforcement or penalty text. The instrument does not create sanctions or specify enforcement pathways for compliance with the adopted recovery plans. If parties assume the plans create legally enforceable obligations beyond recognition, they should check the EPBC Act and the plan content to see whether any statutory or contractual enforcement follow.

7. Replacement of earlier plan. The instrument repeals the earlier Forty‑Spotted Pardalote recovery plan (1991-1997) that had been adopted. Practitioners should ensure that projects and approvals transition from the repealed plan to the adopted 2006-2010 plan without assuming continuity in substantive measures; the instrument effects legal replacement but not necessarily continuous operational measures.

8. Single instrument, multiple species scopes. Some adopted documents are multi‑species and cover taxonomic groups (for example the Galaxiidae plan and the Threatened Tasmanian Orchids plan). For projects affecting a single species it may not be obvious which parts of a group plan are germane. Review the adopted plan document to isolate species‑specific measures.

9. Silence on interactions with other regulatory instruments. The instrument does not address overlaps with state planning approvals, EPBC Act approvals, or other habitat protection mechanisms. Users must determine separately how the adopted plans influence or interact with approvals and assessment processes.

10. Administrative enquiries should be directed to the stated maker. The instrument identifies the Department of Primary Industries and Water, Hobart as the maker of the adopted plans. For clarifications about content, data sources, monitoring protocols or implementation contacts, that Tasmanian agency is the appropriate starting point, even though the instrument was signed by the Commonwealth Minister.

In short, treat the instrument as a narrow but immediate change to which documents count as Commonwealth‑recognised recovery plans, then obtain and scrutinise the adopted plan texts and any related administrative guidance to understand practical obligations, timelines and interactions.

This instrument does not itself prescribe behavioural obligations or penalties, but it changes which documents are formally adopted as recovery plans for specific threatened species. Compliance therefore has two primary dimensions: documentary compliance (knowing which documents are the operative recovery plans) and substantive compliance (taking the adopted plans into account where relevant under other laws or processes). The steps below flow from what the instrument records; they do not invent new statutory duties beyond the instrument’s text.

1. Obtain the adopted recovery plan texts. The instrument identifies each adopted plan by title, maker and plan period (2006-2010). For compliance or advisory work, obtain the original Tasmanian documents identified in the instrument (for example, "Threatened Species Section (2006). Fauna Recovery Plan: Tasmanian Giant Freshwater Lobster (Astacopsis gouldi) 2006-2010. Department of Primary Industries and Water, Hobart"). Do not rely solely on the instrument’s table transcription because of typographical and formatting issues; use the original documents to confirm species lists, recommended actions, monitoring requirements, and any operational schedules.

2. Treat 10 November 2006 as the operative adoption/repeal date. The instrument states that the repeal and the adoptions "will take effect on the date of signing of this instrument" and records the date of signing as 10 November 2006. For any retrospective or transitional analysis, use that date as the pivot for which recovery plan text was legally adopted at the relevant time.

3. Identify who prepared the plan and who to contact for operational queries. The instrument names the Threatened Species Section, Department of Primary Industries and Water, Hobart as the maker of each adopted plan. Direct technical and implementation questions to that Tasmanian agency; the adopted documents are Tasmanian products formally adopted by the Commonwealth.

4. Check plan timeframe and lifecycle. Each plan’s title indicates the plan period (2006-2010). Determine whether the plan’s internal provisions create obligations or reporting schedules during that plan period, and identify whether the plan was later superseded, extended, replaced, or allowed to lapse after 2010. The instrument does not specify what happens at expiry; compliance requires checking subsequent instruments or Departmental records after 2010.

5. Cross‑check species nomenclature and scope. Because the instrument concatenates multi‑species lists and contains a typographical variant of the Forty‑Spotted Pardalote name, confirm scientific names and taxonomic scope in the original plan documents to avoid misidentifying the species to which the plan applies.

6. Where actions or approvals are contemplated, factor the adopted plans into legal and environmental assessments. The instrument does not itself create penalties, but it changes which recovery plans are Commonwealth‑recognised. If you are advising on proposed actions that may affect one of the listed species, incorporate the adopted recovery plans into your impact assessment, mitigation planning and stakeholder engagement. Precisely how those plans influence statutory approvals depends on the EPBC Act and other statutory instruments, which must be checked in parallel.

7. Keep a record of the replacement of earlier plans. The instrument repealed the Forty‑Spotted Pardalote 1991-1997 recovery plan. For continuity and evidentiary purposes, document that the 2006-2010 Fauna Recovery Plan for Forty‑Spotted Pardalote, as adopted under this instrument, is the operative Commonwealth‑recognised plan from 10 November 2006 onwards.

8. Verify whether the adopted plans impose recommended measures that require external funding or obligations. The instrument is silent on funding; if the adopted plan contains measures that assigned responsibilities or suggested actions for landholders, developers, or state agencies, assess who is expected to bear the cost of implementation and whether funding arrangements exist. The instrument does not allocate funds; implementation planning must therefore be informed by intergovernmental or budgetary instruments external to this adoption instrument.

9. For contentious or uncertain matters, seek administrative clarification. The instrument identifies the Minister and the Tasmanian agency by name. Where the legal effect of the adopted plan on approvals or compliance is unclear, consider seeking formal advice from the Commonwealth Department responsible for the EPBC Act or the Tasmanian Department of Primary Industries and Water.

10. Monitor for successor instruments. Because the adopted plans have plan periods ending in 2010 and the instrument does not address the post‑2010 position, check for subsequent ministerial instruments that extend, replace, repeal or re‑adopt recovery plans. Relying on a 2006-2010 plan after expiry without confirming successor action risks non‑compliance with current regulatory expectations.

These steps are practical and flow from the text of the instrument: it designates specific Tasmanian documents as recovery plans under subsection 269A(7) of the EPBC Act, and it repeals a prior adopted plan using subsection 33(3) of the Acts Interpretation Act 1901. Compliance therefore requires treating the adopted documents as the operative recovery plans from the date of signing and consulting those documents for operational details and obligations.