Listed threatened species connotes a species included in the list established under section 178 of the EPBC Act. The instrument does not state the category (e.g. vulnerable, endangered, critically endangered) for each species, but the fact that a recovery plan exists implies that the species has been assessed as requiring active intervention. All 40 species in the instrument are plants, and all are endemic to Victoria. The taxonomic names used in the table include both current and synonymised names, for example Leiocarpa gatesii (previously Leptorhynchos gatesii) and Lobelia gelida (previously Pratia gelida). This indicates that the instrument relies on the taxonomic understanding at the time of adoption, and subsequent reclassifications may create ambiguity about whether the adopted plan covers the species as currently known.

Recovery plan under the EPBC Act is a statutory instrument that sets out the research and management actions necessary to stop the decline of, and to support the recovery of, a listed threatened species. The Act requires a recovery plan to identify threats, propose actions to mitigate them, specify criteria for when the plan may cease to apply, and designate responsible jurisdictions. The instrument adopts plans that were written under Victorian processes; they may not contain all the elements that a Commonwealth‑made plan would require. However, section 269A allows adoption if the minister is satisfied that the state plan is consistent with the EPBC Act and its regulations. The adopted plans are treated as if they were made under the EPBC Act, so any deficiency must have been considered acceptable at the time of adoption.

Adoption is a distinct mechanism from making a plan from scratch. Under section 269A(2), the minister must cause a copy of the state plan to be made available for public inspection, but the consultation requirements that apply to the making of a new plan (under section 269A(3)) are not triggered if the minister adopts a plan that has already been subject to state public consultation. This is a faster and cheaper route, but it means that the Commonwealth does not independently test the plan’s adequacy. The instrument does not record whether public consultation occurred; it simply states the adoption.

Incorporation by reference is central to the instrument’s operation: the plan documents are not set out in the Commonwealth legislative instrument. Readers must locate the plan separately. The instrument cites each plan by title, author, year, and publisher (DSE, Melbourne). This is sufficient for identification but imposes a practical burden on anyone trying to understand the precise duties. The plans themselves are administrative documents of varying length, often with maps, habitat prescriptions, and threat management recommendations. They are not legislative instruments in their own right under the Legislation Act 2003 - only the adoption instrument is. This can create confusion about whether the plans are legally binding or merely advisory.

State agency involvement: all adopted plans were prepared by the Victorian Department of Sustainability and Environment (DSE). The instrument represents a cooperative federal approach: the Commonwealth relies on state expertise to draft recovery documents, then adopts them to give them national legal effect. This reduces duplication but raises the risk that state priorities may not fully align with Commonwealth listing priorities (e.g. if the state ranks threats differently from the Commonwealth). The instrument also implicitly delegates the ongoing review and amendment of these plans to the state; if the state updates a plan, a new adoption instrument is needed if the Commonwealth wishes the new plan to have effect.

The instrument primarily affects the 40 listed threatened species themselves, but in a legal sense it affects every person or entity whose activities intersect with those species. The most directly affected group is landholders whose properties contain habitat for any of these species. The adopted recovery plans typically prescribe actions such as fencing off habitat, controlling weeds and feral animals, revegetating buffer zones, and avoiding certain land uses during critical periods. While the instrument does not impose duties directly, the plans may become conditions of a conservation agreement or a management plan under state law, or they may be referenced in a permit issued under the EPBC Act. If a landholder is subject to a condition that requires compliance with the plan, failure to comply could have enforcement consequences.

State and local government authorities in Victoria are affected because the instrument makes the plans relevant to approvals under state planning schemes. Under the Victorian Planning and Environment Act 1987, responsible authorities must consider relevant environmental documents. The existence of a Commonwealth recovery plan increases the weight likely to be given to conservation of those species in permit decisions. For state agencies such as DELWP (formerly DSE) and Parks Victoria, the plans guide management of public land. The agency that prepared the plans is also obliged to review them periodically, though the instrument does not impose a review schedule.

Proponents of development projects (e.g. infrastructure, mining, housing, forestry) that may affect one or more of these species are affected because the instrument makes a recovery plan part of the legal landscape for EPBC Act approvals. Under section 139(2), the minister must consider any relevant recovery plan when deciding whether to approve a controlled action. This adds an additional layer of analysis: the proponent must show how the proposal is consistent with the plan’s objectives and actions. Even if the proposal is not a controlled action, the plan may affect the assessment of whether a significant impact is likely, thereby tipping the balance toward requiring approval.

The Commonwealth Department of the Environment (now DCCEEW) is directly affected because it must ensure the implementation of each recovery plan to the extent that it applies to Commonwealth areas (section 268). This includes land owned or managed by the Commonwealth, such as defence land, airports, and national parks in Victoria. The department must also maintain a register of recovery plans and make them available. The instrument increases the department’s administrative burden because it adds 40 plans to the set of documents it must maintain and consider.

Conservation groups and researchers benefit from the instrument because it provides a statutory basis for the plans, which can be used to advocate for better management or to challenge decisions that ignore the plans. Conversely, the instrument may create a false sense of security: the mere existence of a plan does not guarantee funding or on‑ground action. The instrument does not allocate resources.

The instrument itself imposes no duties or rights. It is a ministerial adoption that activates duties and rights arising under other provisions of the EPBC Act. The principal duties triggered are:

Duty of the Commonwealth minister - Under section 268 of the EPBC Act, the minister is required to ensure that each recovery plan is implemented to the extent that it applies to areas owned or controlled by the Commonwealth. This is a positive duty, but it is qualified: it applies only to Commonwealth areas. For areas outside Commonwealth control (i.e. most of the land where these Victorian species occur), the duty is not to implement but simply to consider the plan in decision‑making.

Duty to consider recovery plans in approval decisions - Section 139(2) requires that, when deciding whether to approve a controlled action under Part 9, the minister must consider any relevant recovery plan. This is a procedural duty. It does not compel the minister to follow the plan, but failure to consider it could ground a judicial review application.

Duty to give effect - The minister must also give effect to a recovery plan when making listing decisions and when issuing permits under Part 13 (sections 174, 190, and 201). These duties are enforceable in the sense that a court could order the minister to comply if a clear breach is shown.

Rights of third parties - The EPBC Act does not create a private right of action for a failure to implement a recovery plan per se. However, a person whose interests are affected may seek judicial review of a decision that was made without properly considering the plan, under the Administrative Decisions (Judicial Review) Act 1977 or the Constitution. The instrument itself is not directly enforceable; it is the underlying plan content that may create expectations but not legally enforceable rights unless incorporated into a condition of approval or a conservation agreement.

Duties under the plans - The adopted plans may prescribe actions for landholders (e.g. not to graze in certain areas, to control rabbits, or to avoid pesticide use). These are not duties that arise from the instrument; they are matters of state law or contract. The instrument does not convert them into Commonwealth offences. The instrument’s legal effect is limited to the EPBC Act framework; it does not extend state regulatory powers.

Obligation to make plans available - The minister must cause a copy of each adopted plan to be available for public inspection (section 269A(2)). This duty arises at the time of adoption. After adoption, the plans are treated as part of the recovery plan register. Failure to maintain access could be challenged.

The instrument does not contain any penalty provisions. Penalties relevant to recovery plans arise from the EPBC Act itself, not from this adoption. The key enforcement mechanisms are:

Offences relating to controlled actions - If a person takes an action that has or is likely to have a significant impact on a listed threatened species that is the subject of a recovery plan, and does so without approval, the penalty can be severe (up to 7 years imprisonment for individuals and fines of up to 5,500 penalty units for corporations under section 18 and 18A). The existence of a recovery plan may make it easier for the prosecution to prove significant impact, because the plan identifies the species’ critical habitat and threats.

Civil enforcement for breach of conditions - If a condition of approval requires compliance with the recovery plan, failure to comply can lead to injunctions or civil penalties (Part 17 of the EPBC Act). The instrument itself does not create conditions, but it provides the legal foundation for the plan to be used as a condition.

Injunctive relief - A person may seek an injunction to restrain a breach of the EPBC Act that relates to a recovery plan, for example if the minister fails to consider the plan before approving an action. This remedy is available under section 475 of the Act.

Judicial review - Decisions under the EPBC Act that fail to consider a recovery plan, or that are inconsistent with a plan without adequate justification, are susceptible to judicial review under the Administrative Decisions (Judicial Review) Act 1977. The instrument, as the legal source of the plan’s status, is relevant to any argument that the decision‑maker was bound to or should have considered the plan.

No direct penalty for non‑compliance with the plan itself - The instrument does not make it an offence to deviate from the plan’s recommendations. The plan is a guidance document unless it is incorporated into a legally binding instrument (such as a conservation agreement under section 305 or a permit condition). Therefore, a landholder who ignores the plan but does not trigger a controlled action may face no Commonwealth penalty. Enforcement relies on the plan being given legal force through other mechanisms.

State enforcement - The plans may be enforceable under Victorian law if they are referenced in state planning permits or management plans. The instrument does not affect state enforcement powers.

No penalty for the minister - There is no monetary penalty for the minister’s failure to implement a recovery plan on Commonwealth land. The consequence is potential judicial review, not a fine.

The instrument sits at the intersection of Commonwealth and Victorian environmental law. Its primary interaction is with the EPBC Act itself, but it also has implications for state and local planning, water management, and native vegetation regulations.

Interaction with the EPBC Act - The instrument is made under section 269A and is part of the recovery plan regime under Part 13 Division 5. It interacts with the listing process: a recovery plan is one of the matters the minister must consider when deciding whether to list a species or change its category (section 186). The instrument confirms that these 40 species are listed. It also interacts with the significant impact thresholds: the EPBC Act Policy Statement - Significant impact guidelines for threatened species refers to recovery plans as a key source of information. The instrument makes the plans authoritative for those guidelines.

Interaction with Victorian planning law - The Planning and Environment Act 1987 (Vic) requires planning authorities to have regard to relevant environmental documents. The instrument is not a state planning document, but the adopted plans (originally state documents) are now also Commonwealth recovery plans. This dual status can lead to overlapping requirements. For example, if a state permit is required for vegetation removal, the responsible authority must consider the state plan, and the Commonwealth may also need to approve the action if it is likely to have a significant impact on the species. The instrument may be cited as evidence that the species is of national significance.

Interaction with the Environment Protection and Biodiversity Conservation Regulations 2000 - The regulations contain provisions about recovery plans, including the matters to be included and the consultation process. The instrument adopts plans that were not prepared under those regulations; however, the minister was satisfied that they are consistent with the Act and regulations. This raises the question of whether the adopted plans satisfy the specific content requirements of the regulations (e.g. identifying critical habitat). The instrument does not answer this.

Interaction with the Legislation Act 2003 - The instrument itself is a legislative instrument under section 269A. It was made before the Legislation Act fully commenced (in 2005, but with delayed sunsetting). The instrument is subject to the Federal Register of Legislation requirements. Plans adopted after the commencement of the Legislation Act may have been registered. The instrument’s sunset date (if any) would be determined under that Act. In practice, many recovery plans adopted before 2005 have not been re‑made and are no longer in force. The instrument from 2006 may have sunset in 2016 unless it was exempted or re‑made. The source does not indicate its current status.

Interaction with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - For species that occur on Indigenous land, the recovery plan may need to be read together with heritage protection laws. The instrument does not address this.

Interaction with water resource plans - Some species (e.g. Eucalyptus cadens the Warby Range Swamp‑gum) depend on specific hydrological regimes. The plan may interact with water allocation plans under the Water Act 2007 (Cth) or state water laws. The instrument does not create any water rights.

The instrument as presented is a single‑page instrument signed on 22 December 2006. It bears no amendments, notepad annotations, or subsequent variation instruments appended. The instrument is a final version as gazetted. Under ordinary principles, legislative instruments can be amended by later instruments of the same type. A minister could make a new adoption under section 269A that replaces the plan for a particular species with a later state plan. For example, if Victoria issued a revised recovery plan for the Spiny Rice‑flower (Pimelea spinescens subsp. spinescens) in 2010, a separate Commonwealth instrument would be needed to adopt that revision. This instrument would then become obsolete for that species. The source does not reveal whether such later instruments exist. Practitioners cannot assume that the 2006 plans are still the operative ones for all 40 species.

The instrument was made under the Environment Protection and Biodiversity Conservation Act 1999 before the Legislation Act 2003 sunsetting provisions began to apply in full. Instruments made between 1 January 2005 and 1 April 2005 were subject to a 10‑year sunset (section 50 of the Legislation Act). This instrument was made in December 2006, so it fell under the standard sunsetting regime: it would have been automatically repealed on 1 April 2016 unless it was listed as an exempt instrument or a new declaration of ongoing effect was made. The Legislation Act allows instruments to be remade or extended by the minister. The source does not indicate whether the instrument has been re‑registered or extended. If it sunset, the plans would cease to be Commonwealth recovery plans. A new adoption instrument would be required to reinstate them. This is a significant gap; the instrument’s current legal status is ambiguous from the source alone. Users must check the Federal Register of Legislation to verify whether this instrument is still in force.

The instrument itself does not contain a sunset provision. It is not self‑amending. The only way to amend it would be to issue a new instrument under section 269A that either adopts a different plan for a species or revokes the adoption. The source does not include any revocation.

The source instrument does not reference any litigation, and I have not been provided with any case law. The instrument itself is a routine administrative act and is unlikely to have been the subject of a standalone legal challenge. However, the content or implementation of the individual adopted plans may have been litigated. For instance, a recovery plan that imposes restrictions on land use could be challenged under state law or under the EPBC Act if a decision‑maker fails to give proper weight to the plan. I must not name cases not in the source, so I will not speculate.

That said, the EPBC Act’s recovery plan provisions have been considered in a number of Federal Court and Administrative Appeals Tribunal decisions. The instrument’s adoption of a state plan could be relevant in a challenge to a decision about a listed species if the decision‑maker relied on a plan that was outdated or procedurally defective. The instrument is a necessary link in the chain because it establishes that the plan is a Commonwealth recovery plan. Without the instrument, the plan would have no EPBC Act status. Therefore, any litigation about the effect of the plan would likely include the instrument as an exhibit. But the instrument itself is unlikely to be the subject of dispute; the dispute would be about whether the minister’s adoption was valid, or whether the plan meets the requirements of the Act.

A possible ground of challenge is that the minister did not properly satisfy himself that the state plan was consistent with the EPBC Act as required by section 269A. The instrument does not recite his satisfaction; he merely states that he adopts the plans under section 269A. This could be challenged as a lack of jurisdiction if the plan is clearly deficient. However, the threshold for such a challenge is high, and the court would likely give the minister a broad discretion. No evidence of such a challenge appears in the source.

Another potential area is whether the instrument is a legislative instrument for the purposes of the Legislation Act 2003. If it is, it must be registered and tabled. Failure to do so could render it invalid. The source does not confirm registration. If a party relied on the plan to their detriment and later discovered it was invalid, that could be a basis for litigation. Again, no case is cited.

Practitioners should treat the instrument as valid but verify its current status before relying on it in litigation. The instrument’s age (2006) and the absence of amendment history increase the risk that it may have been implicitly repealed or sunset.

Several aspects of this instrument could trip up the unwary.

Outdated plans - The plans were adopted in 2006 and were prepared in the same year. Many are now nearly 20 years old. Scientific knowledge of these species’ ecology, threats, and genetics will have advanced. Invasive species may have changed, and climate change may have altered habitats. A plan that was adequate in 2006 may no longer represent best practice. A decision‑maker who relies on the plan without considering current science may be vulnerable to criticism. However, the instrument does not impose a duty to update the plans. The minister could adopt a new plan, but if none exists, the 2006 plan remains the legal document, even if it is biologically obsolete.

Taxonomic confusion - Several species in the table are listed under synonymised names. For example, Leiocarpa gatesii is listed but the plan refers to Leiocarpa gatesii (though the table also gives the synonym Leptorhynchos gatesii). A reader searching for the plan under the current accepted name might miss it. Similarly, Pratia gelida is now Lobelia gelida. This could cause confusion in permit applications or enforcement actions if the wrong name is used. The instrument does not provide guidance on which name should be used for legal purposes.

Incorporation by reference problems - The instrument does not include the plan text. A person must locate each plan from the Victorian DSE archives. The plans may not be readily available online, or the links may have changed. The instrument itself provides no URL or ISBN. This makes it difficult for a party to know what obligations the plan imposes. The instrument is legally effective but practically opaque.

No indication of current status - The instrument does not state whether it is still in force. As noted, it may have sunset under the Legislation Act 2003 in 2016. A person relying on the plan as a Commonwealth recovery plan must check the Federal Register of Legislation to see if the instrument is listed as current. If it is not, the plan has no legal effect under the EPBC Act, even if the state still uses it. This could be a trap for development proponents who assume a recovery plan exists.

Limited scope - plants only, Victoria only - The instrument only covers 40 plant species, all endemic to Victoria. It does not cover fauna or species in other states. This may give a false impression that the EPBC Act recovery plan regime is fully implemented for Victoria’s threatened plants. In fact, many more species are listed but lack a recovery plan. The instrument is a snapshot from 2006, not a comprehensive program.

No binding effect on private land - The instrument gives the plans legal status, but the plans do not automatically bind private landholders. The plans may recommend actions such as fencing or weed control, but these are not enforceable unless adopted under state law or as conditions of approval. A landholder who ignores the plan may face no direct consequences unless the species is also protected under state native vegetation regulations.

Lack of review mechanism - The instrument does not provide for periodic review of the plans. Section 269A allows the minister to adopt a new plan but does not compel it. If the state does not produce a revised plan, the Commonwealth may be stuck with an old plan. This can lead to a situation where the legal document is out of step with on‑ground reality.

Potential inconsistency with later Commonwealth policies - Since 2006, the Commonwealth has issued new policies on recovery planning, such as the Threatened Species Strategy and the Recovery Plan Guidelines 2020. The adopted plans were not prepared under these policies. A decision‑maker might be guided by the older plan but also by new policy, creating internal inconsistency.

Compliance with this instrument is not a matter of following its terms - it has almost no operative terms beyond the adoption. Instead, compliance involves understanding and acting in accordance with the underlying plans. The following steps are recommended for different actors.

For a proponent of a development - Determine whether your project site contains or may affect any of the 40 listed species. Start with the EPBC Act listing for each species and check the adopted recovery plan for that species. The plan will typically identify the species’ habitat, threats, and prescribed recovery actions. If your activity is likely to have a significant impact on the species, you must refer the action to the minister under Part 7 of the EPBC Act. In the referral, you should address how the proposal aligns with the recovery plan. The assessment process will require you to demonstrate that the project will not hinder the achievement of the plan’s objectives. If the minister decides that the action is a controlled action, the conditions of approval may require you to implement parts of the plan (e.g. committing to habitat restoration as per the plan). Maintain records of your compliance with any such conditions.

For a landholder - Check whether the species occurs on your property. Contact DELWP (Victorian Department of Environment, Land, Water and Planning) for site‑specific guidance. The recovery plan may recommend that you adopt certain management practices, such as excluding livestock from habitat areas, controlling weeds, or undertaking supplementary planting. While these recommendations may not be legally binding, following them reduces your risk of inadvertently causing a significant impact that could trigger enforcement. If you apply for a permit under state law, the plan will be a factor in the decision. Compliance with the plan can also be a defence in an enforcement action: showing that you acted in accordance with the plan demonstrates due diligence.

For a government agency or local council - When assessing permit applications that may affect any of the 40 species, consider the recovery plan as part of your decision‑making process. Document how you have had regard to the plan. If the plan recommends specific buffers, fire management, or pest control, incorporate those recommendations into permit conditions where appropriate. The instrument gives the plan legal significance, so failure to consider it could expose your decision to judicial review.

For a conservation group - Monitor whether the minister and the state agencies are implementing the plans. The instrument provides a legal peg to request information under the EPBC Act about the implementation of recovery plans. If a decision is made that ignores the plan, consider seeking judicial review or making a compliant to the Commonwealth Ombudsman.

General compliance check - Verify that the instrument is still in force. As at the date of signing (2006), it may have sunset. Contact the DCCEEW library or check the Federal Register of Legislation. If the instrument has been repealed, the plans are no longer Commonwealth recovery plans, and you should rely on state‑level protections instead. If it is current, locate each relevant plan: the best source is the Victorian DELWP website or the DCCEEW recovery plan register. Note the publication details (e.g. Carter & Walsh 2006). Use the exact title to avoid confusion. If the plan is unavailable, request a copy from the department. Do not rely on summaries; the exact text is authoritative.

Finally, remember that this instrument alone does not impose obligations. It is the portal through which state plans gain Commonwealth status. The substantive compliance work lies in reading, understanding, and implementing the 40 plans themselves. The instrument is a necessary threshold, but it is only the beginning.