Environment Protection and Biodiversity Conservation Act 1999 - section 269A - Instrument repealing and adopting Recovery Plans (09/05/2007)

The instrument operates through two principal administrative concepts: repeal of earlier Commonwealth-adopted recovery documents, and adoption by the Commonwealth of recovery plans prepared by States or Territories. Both concepts are presented in the instrument as acts taken under particular statutory authorities; specifically, repeal is stated to be undertaken pursuant to subsection 33(3) of the Acts Interpretation Act 1901, and adoption is stated to be taken under subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 (instrument, opening lines and para 1).

"Repeal" in the instrument is the formal removal of two previously adopted recovery plans. The instrument identifies the precise items being repealed by title and by reference to the earlier dates on which they were adopted under s 269A(7) (instrument, para 1(a)-(b)). The instrument states the immediate legal effect: the repeal “will take effect on the date of signing of this instrument” (instrument, penultimate paragraph).

"Adoption" in the instrument is the Commonwealth's administrative act of recognising specified State/Territory documents as recovery plans for listed threatened species under s 269A(7). The instrument lists seven such plans, grouped by jurisdiction: New South Wales (3), Northern Territory (2), Queensland (2). For each adopted plan the instrument records the listed threatened species and the plan title, authoring agency and publication year (instrument, para 2 and ensuing tables). The adoption is stated to be effective immediately: the adopted recovery plans “will come into force on the date of signing of this instrument” (instrument, final paragraph).

Two procedural features are explicit. First, the instrument cites the statutory authority it relies on rather than reproducing the statutory rules themselves. That means the instrument records that the Minister exercises powers under the specified subsections, and adopts or repeals documents accordingly. Second, the instrument records provenance for the adopted documents: each plan is described as “made by the State of New South Wales, the Northern Territory and Queensland (or agencies of those State/Territory)” (instrument, para 2). That language signals an administrative mechanism of cross-jurisdictional recognition whereby documents produced by State/Territory agencies are folded into Commonwealth recovery planning by adoption.

The instrument does not itself define the legal consequences that flow from a document being a "recovery plan" under s 269A(7). The instrument does not include implementation detail such as funding commitments, enforcement mechanisms, monitoring arrangements, statutory obligations on third parties, or transitional arrangements for replacing the repealed documents. The instrument is therefore an administrative step that changes the identity of the Commonwealth‑recognised recovery plans for the species listed, leaving the substantive content and operationalisation of those plans to the text of the adopted documents and to the statutory framework referenced but not reproduced in the instrument.

The instrument identifies a constrained set of administrative actors and named listed threatened species. At the narrowest level, the immediate decisionmaker is the Commonwealth Minister for the Environment and Water Resources, Malcolm Bligh Turnbull, who signs the instrument (instrument, signature block and date). The instrument records the statutory bases relied on, namely subsection 33(3) of the Acts Interpretation Act 1901 for the repeals and subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 for the adoptions (instrument, opening lines and para 1). Those statutory references indicate the institutional locus of authority but the instrument itself does not replicate the duties contained in those Acts.

The instrument directly concerns the following listed threatened species, each named in the recovery-plan tables:

• Persoonia nutans (Nodding Geebung) (New South Wales recovery plan, NSW Department of Environment and Conservation, 2006)
• Prostanthera askania (listed species with NSW recovery plan, NSW Department of Environment and Conservation, 2006)
• Zieria involucrata (listed species with NSW recovery plan, NSW Department of Environment and Conservation, 2006)
• Macrotis lagotis (Greater Bilby) (Northern Territory recovery plan, Pavey, C., 2006)
• Erythrura gouldiae (Gouldian Finch) (Northern Territory recovery plan, O’Malley, C., 2006)
• Allocasuarina emuina (Mt Emu she-oak) (Queensland recovery plan, Environmental Protection Agency, 2007)
• Litoria olongburensis (wallum sedgefrog and other wallum-dependent frog species) (Queensland recovery plan, Meyer et al., 2006)

The instrument also explicitly names the State and Territory agencies that authored or are associated with the adopted plans. These include the NSW Department of Environment and Conservation, Northern Territory Department of Natural Resources, Environment and the Arts, WWF‑Australia (in partnership for one plan), and Queensland Environmental Protection Agency and Queensland Parks and Wildlife Service (instrument, recovery-plan tables). By adopting plans prepared by those agencies the Commonwealth recognises documents authored at State/Territory level as Commonwealth recovery plans for the listed species.

Who else is affected is implied rather than stated. Owners and occupiers of land where the named species occur, researchers working on those species, conservation NGOs, and project proponents planning works in species habitat are likely to be interested because the instrument changes which documents are the Commonwealth-adopted recovery plans for those species. The instrument itself does not name those stakeholders, but the practical effect of changing which plans are Commonwealth recovery plans will usually be relevant to parties whose activities intersect with those species’ habitats because recovery plans commonly set out threats, management actions and priorities. The instrument does not specify obligations or rights for such third parties; it identifies the documents that are adopted and the immediate effective date.

Finally, administrative actors inside the Commonwealth Department of the Environment and Water Resources are affected operationally because the instrument changes the set of recovery plans the Department must treat as adopted under subsection 269A(7). That will be relevant to any Commonwealth decisionmaking, advice, or record‑keeping that references recovery plans for the listed species. The instrument requires no separate attestation by those agencies in the text; it is a ministerial instrument that records the adoption and repeal actions taken on the stated date.

The instrument itself is short and administrative in form. It records the exercise of power to repeal and to adopt, but it does not in its text create detailed duties, rights, funding commitments, monitoring obligations or enforcement mechanisms. Two key legal acts are invoked as the source of authority: subsection 33(3) of the Acts Interpretation Act 1901 for the repeals and subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 for the adoptions (instrument, opening lines and para 1). The instrument therefore functions as a statutory exercise of the Minister’s authority, but the instrument does not restate what substantive duties or rights those statutory subsections confer; that text must be read in conjunction with the underlying statutes.

Mechanically, the instrument's primary duty on the Minister is to effect the repeal and adoption actions recorded. The instrument shows the Minister is doing so in a documented way: it lists the exact instruments being repealed, the exact recovery-plan documents being adopted, and it records the dates on which the earlier instruments were originally adopted and the effective date for repeal and adoption (instrument, para 1 and recovery-plan tables; final paragraphs). That administrative duty to document decisions is discharged by the instrument.

For third parties, rights and duties are not spelled out in the instrument. The instrument does not itself impose obligations on landholders, developers, researchers or other private parties. However, by adopting the identified State/Territory recovery plans as Commonwealth recovery plans under subsection 269A(7), the Minister is indicating that these plans are the documents the Commonwealth recognises for the listed species. Any duties or procedural implications that attach to recovery plans under the EPBC Act will therefore be tied to the content of the adopted plans and the EPBC Act provisions referenced. The instrument does not reproduce those duties or specify how they operate; it merely identifies which documents are adopted.

The instrument also does not articulate rights such as compensation entitlements, review rights, or appeal routes. It contains no provision for transitional arrangements for parties previously regulated by or referencing the repealed plans. The only temporal clarity given is that repeal and adoption are effective on the date of signing of the instrument. This creates an immediate administrative shift without accompanying text in the instrument concerning transitional compliance steps, record updates, or funding responsibilities.

Where duties or rights might be sought in relation to the adopted plans, the operative source for those will be the text of the adopted recovery plans themselves and the statutory framework of the EPBC Act (as the instrument invokes s 269A(7)). Practitioners and affected parties must therefore consult both the instrument to know which documents are adopted and the adopted documents together with the EPBC Act to determine the practical legal obligations, rights to participate in plan processes, or any statutory entitlements.

The instrument does not contain penalty or enforcement provisions. It is a ministerial instrument limited to administrative acts of repeal and adoption; the text does not introduce offences, monetary penalties, compliance notices, enforcement mechanisms, or administrative sanctioning procedures. The instrument’s operative clauses are purely declaratory and administrative: repeal of two listed recovery documents and adoption of seven State/Territory recovery plans as Commonwealth recovery plans, with effect on the date of signing (instrument, paras 1-2 and final paragraphs).

Because there are no penalties or enforcement mechanisms in the instrument itself, any enforcement that follows from these changes must originate in the statutory framework invoked by the instrument (the EPBC Act, referenced at subsection 269A(7)) or within the adopted recovery plans. The instrument does not delegate enforcement to the State/Territory agencies, nor does it state whether or how the adopted plans will be enforced, whether compliance will be monitored by the Commonwealth, or whether funding will be provided to implement measures in the adopted plans.

Practically, this means that the instrument is not a self-executing enforcement instrument. It is a naming act that identifies which documents are Commonwealth-adopted recovery plans. Where enforcement exists in relation to recovery plans, such enforcement must be sought in the statutory provisions that define the legal status and effect of recovery plans and/or in the administrative processes and instruments that implement those statutory provisions. The instrument itself does not explicate those links.

The absence of enforcement detail creates implementation risks that are administrative rather than textual. For example, compliance expectations that arise from being a listed recovery plan cannot be inferred from the instrument alone; interested parties must inspect the adopted plans and the EPBC Act to identify any actions that may trigger approvals, prohibitions, or other enforcement measures. The instrument’s own text, however, contains no enforcement mechanism to rely on.

The instrument expressly situates itself within a limited statutory landscape by referencing two external legislative sources as the bases for its actions. For the repeals it cites subsection 33(3) of the Acts Interpretation Act 1901 and for the adoptions it cites subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 (instrument, opening lines and para 1). The instrument does not reproduce or interpret those statutory provisions; instead it records ministerial action taken pursuant to them. Therefore the interaction with other laws is procedural and referential in nature.

One concrete cross‑jurisdictional interaction recorded in the instrument is the administrative recognition by the Commonwealth of State and Territory authored recovery plans. The instrument adopts plans made by the State of New South Wales, the Northern Territory and Queensland, or agencies of those jurisdictions, and declares them to be Commonwealth recovery plans for the listed threatened species (instrument, para 2 and recovery-plan tables). That administrative recognition creates an intergovernmental relationship in which State/Territory authored documents are given Commonwealth adoption status. The instrument thereby aligns, on paper, the Commonwealth's recovery-plan register for specified species with the State/Territory material that is identified.

The instrument also interacts with prior Commonwealth administrative acts. It expressly repeals two recovery instruments previously adopted under subsection 269A(7), specifying the earlier adoption dates (13 October 2003 for the Thick‑billed Grasswren interim plan and 5 October 2001 for the Persoonia nutans plan) (instrument, para 1(a)-(b)). This shows a chain of administrative acts under the EPBC Act and the Minister’s departmental practices: the Commonwealth previously adopted certain documents, and the Minister now reverses that status for those documents while adopting others in their stead.

The instrument does not indicate interaction with other Commonwealth statutes such as budget or appropriations laws. It does not mention any funding, cost-sharing arrangements, or expenditure commitments that would engage financial or appropriations law. Nor does it reference administrative law remedies, judicial review, or merits review avenues, although those general legal avenues may exist elsewhere in law; the instrument itself contains no mention of them.

Finally, the instrument contains internal textual interactions worth noting. It uses slightly varying formulations of the EPBC Act title in different parts of the text; for example the opening reference reads "Environment Protection and Biodiversity Conservation Act 1999" and a later line reads "Environment Protection Biodiversity Conservation Act 1999" without the conjunction and. Those textual inconsistencies are internal to the instrument and do not create new statutory language, but they are points to check when mapping the instrument to legislative citations.

Overall, the instrument operates as an administrative connector between Commonwealth statutory authority and State/Territory authored recovery documents. Its substantive legal interactions with other laws are signalled by reference rather than by textual elaboration; practitioners must therefore read the instrument in conjunction with the cited statutory provisions and with the adopted recovery plans to understand the full legal matrix that governs duties, compliance and procedural rights.

The instrument itself is dated 9 May 2007 and records two prior Commonwealth adoption acts for the documents it repeals. Those earlier dates are part of the instrument’s amendment history record. Specifically:

• The Thick‑billed Grasswren (Western Subspecies) (Amytornis textilis textilis) Interim Recovery Plan 2000-2002 is identified in the instrument as having been “adopted under subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 on 13 October 2003” and is now repealed by the instrument (instrument, para 1(a)).

• The Conservation Research Statement and Species Recovery Plan for Persoonia nutans R. Br. 1996 is recorded as having been “adopted under subsection 269A(7) of the Environment Protection Biodiversity Conservation Act 1999 on 5 October 2001” and is now repealed by the instrument (instrument, para 1(b)).

The instrument therefore performs an amendment by way of repeal to the Commonwealth record of adopted recovery plans. It replaces the Commonwealth‑adopted documents for the named species with a new set of adopted State/Territory plans, listing each adopted plan with bibliographic detail including authoring agency and year of publication (instrument, para 2 and recovery-plan tables). The instrument states that the repeal and the new adoptions will take effect on the date of signing, thereby creating a single‑date administrative amendment to the Commonwealth’s register of adopted recovery plans (instrument, final paragraphs).

There is no internal textual history in the instrument that records any amendment to the newly-adopted plans themselves; the instrument adopts the State/Territory documents in their stated forms, by title and by year. The instrument does not create or record any modifications to those documents. It also contains no explicit provision for future amendment or for the process by which adopted plans may later be repealed or replaced. Any future amendments to the Commonwealth’s list of adopted recovery plans would require a further instrument or administrative action, the form of which is not described here.

The instrument therefore documents a specific point-in-time change to the Commonwealth’s catalogue of adopted recovery plans on 9 May 2007: two previously adopted documents are removed and seven State/Territory documents are adopted. Practitioners needing a formal amendment history for these species’ recovery plans should treat this instrument as the relevant Commonwealth instrument recording that change and should cross‑reference the dates and original adoption records cited in the instrument for the repealed items.

The instrument contains no references to litigation, court decisions, judicial reviews or merits review outcomes. It does not cite any cases nor does it record any legal challenges to the earlier adoptions or to the present instrument. The text is an administrative instrument announcing repeal and adoption decisions; it remains silent as to any disputes, appeals, or judicial consideration.

Because the instrument does not mention litigation, there is no litigation history contained within the instrument’s text to analyse. Practitioners seeking to understand whether these adoptions or repeals have been subject to legal challenge must therefore consult external records, case databases, or administrative review logs. The instrument itself functions only as the Minister’s declaration of repeal and adoption and does not purport to record any extant or terminated litigation relating to its subject matter.

Where litigation might bear on the legal consequences of the instrument, that would be visible only in external sources: e.g. case law interpreting subsection 269A(7) of the EPBC Act or judicial consideration of the legal status of adopted recovery plans. Nothing of that nature appears in the instrument’s text. For the purposes of any legal analysis grounded solely in the instrument, there is no litigation history to cite.

The instrument’s brevity and focus on adoption and repeal leave several practical and textual issues that users must watch for. The instrument does not itself explain the substantive content of the adopted recovery plans, nor does it provide transitional arrangements or implementation funding. Below are concrete points drawn from the instrument text that create operational or interpretive risk.

1. Immediate effect on the date of signing: both the repeal and the adoptions “will take effect on the date of signing of this instrument” (instrument, penultimate and final paragraphs). That creates an immediate administrative change. Parties who had acted in reliance on the repealed documents or on prior expectations should note the precise effective date and confirm which document they must now consult. The instrument gives no transitional guidance for actions already taken under the repealed plans.

2. No enforcement, funding or implementation detail: the instrument does not set out enforcement mechanisms, monitoring standards, timeframes, or funding commitments for the adopted plans. The instrument’s silence on these points means practical obligations and costs to implement the adopted plans (if any) are to be found only in the adopted documents and the wider statutory framework. Users should not assume the Minister’s adoption carries an immediate funding package or enforcement regime without consulting the adopted plans and relevant statutory provisions.

3. Reliance on State/Territory documents: the adopted plans are “made by the State of New South Wales, the Northern Territory and Queensland (or agencies of those State/Territory)” (instrument, para 2). Variability across jurisdictions in plan format, priorities and terminologies may create inconsistency in Commonwealth practice unless harmonised elsewhere. The instrument makes no attempt to harmonise or modify the adopted plans; it adopts them as represented in the titles and authors given.

4. Typographical and nomenclature issues within the instrument: the recovery-plan table for New South Wales lists the species row as “Prostanthera askania” but the corresponding Recovery Plan entry reads “Prostanthera askani Recovery Plan” (instrument, New South Wales table). That looks like a transcription or typographical discrepancy in the instrument text that could create uncertainty about the exact species name being adopted. Another textual duplication appears in the Queensland Litoria entry: the plan title includes the phrase “national recovery plan for the wallum sedgefrog and other other wallum-dependent frog species” (instrument, Queensland table), which contains a duplicated word. These internal inconsistencies are not resolved within the instrument and should be verified against the actual documents cited.

5. Repeal of earlier Commonwealth-adopted plans that may have been cited elsewhere: the instrument repeals specific earlier adoptions, identifying the dates on which those earlier documents were adopted under s 269A(7) (instrument, para 1). Any other Commonwealth instruments, approvals, or statutory references that rely on the repealed documents may now point to documents that no longer have theised adoption status. The instrument does not identify or update any such cross‑references.

6. No statement on modification: the adopted State/Territory documents are listed by title and year. The instrument does not state whether the Commonwealth adopted the plans with modifications or conditions. The text is silent on whether the adopted documents are adopted verbatim or subject to clearance or amendment by Commonwealth officers.

7. Narrow scope of the instrument: the instrument addresses only the listed species and the named documents. It does not encompass other recovery plans or threatened-species measures that might be relevant to the same habitats or ecosystems. Users should not assume broader coverage than the text provides.

In short, the primary operational gotchas are immediate effect with no transitional guidance, reliance on external documents for substantive content, textual inconsistencies in species names and plan titles, and absence of enforcement, funding or modification statements. Each of these issues is visible from the instrument’s text and should be checked against the actual recovery-plan documents and against other administrative records.

Compliance with the legal and administrative change effected by this instrument requires two strands of steps: administrative/documentary steps to align records and references with the adoption and repeal; and substantive steps to identify what obligations, if any, attach to the adopted recovery plans under the wider statutory framework. The instrument itself does not set compliance obligations for third parties, but it changes which documents are Commonwealth‑adopted recovery plans for the listed species. Practical compliance actions grounded on the instrument follow.

1. Record the effective date. The instrument states that both repeal and adoption “will take effect on the date of signing of this instrument” and that the recovery plans “will come into force on the date of signing of this instrument” (instrument, final paragraphs). The date of signing is 9 May 2007 (instrument, signature block). Organisations that maintain registers, databases or compliance documentation should update records to show that from 9 May 2007 the named State/Territory documents are the Commonwealth-adopted recovery plans for the listed species and that the two earlier Commonwealth-adopted documents have been repealed.

2. Obtain the adopted recovery plan documents. The instrument identifies each adopted plan by title, author and year. For practical compliance, obtain copies of the following documents and retain them as the operative Commonwealth-adopted recovery plans for the named species from 9 May 2007:

   • Persoonia nutans R.Br. (Nodding Geebung) Recovery Plan, NSW Department of Environment and Conservation, 2006.
   • Prostanthera askani/askania Recovery Plan, NSW Department of Environment and Conservation, 2006. Note the textual discrepancy in the instrument and obtain the plan text to confirm the precise species name used.
   • Zieria involucrata R.Br. ex Benth Recovery Plan, NSW Department of Environment and Conservation, 2006.
   • National Recovery Plan for the Greater Bilby Macrotis lagotis, Pavey C., Northern Territory Department of Natural Resources, Environment and the Arts, 2006.
   • National Recovery Plan for the Gouldian Finch (Erythrura gouldiae), O’Malley C., WWF‑Australia and Parks and Wildlife NT, 2006.
   • National recovery plan for the Mt Emu she-oak Allocasuarina emuina, Environmental Protection Agency, Queensland, 2007.
   • National recovery plan for the wallum sedgefrog and other wallum-dependent frog species, Meyer E., Hero J‑M., Shoo L. and Lewis B., 2006.

3. Confirm species names and plan text. Because the instrument contains at least one apparent typographical inconsistency in species naming and a duplicated word in a plan title, confirm the species identity and the authoritative document text by checking the cited recovery plans themselves. This prevents mis‑identification in regulatory filings, environmental impact assessments, or land-management plans.

4. Update references in approvals and environmental documents. Any Commonwealth approvals, environmental impact assessments, or project documents that cite the repealed recovery plans should be reviewed and, where relevant, updated to reference the newly adopted plans. The instrument provides no transitional wording; practitioners should therefore assume that from the effective date the new adopted plans are the appropriate Commonwealth references.

5. Map out content that may impose practical obligations. The instrument does not itself establish duties but the adopted recovery plans may contain actions, threat mitigation measures, or prescribed priorities. Entities with activities in the habitats of the named species should review the adopted plans to identify practical management measures that may be enforced or expected by regulators, including measures that affect timing, methods, or mitigation for activities.

6. Liaise with relevant State/Territory agencies. The instrument adopts State/Territory documents authored by the NSW Department of Environment and Conservation, Northern Territory Department of Natural Resources, Environment and the Arts, Queensland Environmental Protection Agency and Queensland Parks and Wildlife Service. For implementation questions, funding opportunities or operational clarifications, contact those agencies as the adopted plans originate with them and are likely to be the practical contact point for on‑the‑ground management.

7. Check for consequential Commonwealth instruments or guidance. The instrument leaves silent any Commonwealth guidance about how the adopted plans will be used in Commonwealth decisionmaking. Practitioners should review departmental guidance, policy statements, or other Commonwealth instruments that might have been issued contemporaneously or subsequently to give effect to adoptions. Because the instrument is silent on enforcement and funding, those matters, if present, will be addressed elsewhere.

8. Maintain audit trails and document reliance. If actions were taken based on the earlier repealed plans, keep records that show the dates of action and the basis for reliance. Given the instrument’s immediate repeal date, parties who earlier relied on the repealed documents may need to show the basis for any continued measures or seek clarifying advice from the Commonwealth Department.

9. Prepare for cross‑jurisdictional variation. Because the instrument adopts State/Territory documents directly, expect that content and priorities may reflect State/Territory policy approaches. For projects crossing jurisdictional boundaries or with Commonwealth and State approvals, reconcile differing expectations by referencing the actual adopted documents and by seeking clarification from the relevant agencies.

10. Consider professional advice for high‑risk activities. For proponents of projects that could affect the listed species or their habitat, consider obtaining legal or environmental consulting advice to interpret how the adopted plans interact with any statutory approval requirements under the EPBC Act and other applicable planning or environmental laws. The instrument does not itself resolve those interactions.

These concrete steps are grounded in the instrument’s mechanics. The instrument identifies which documents are Commonwealth‑adopted recovery plans from 9 May 2007 and removes two previously adopted documents. Compliance therefore consists largely of updating records and consulting the adopted plans and the responsible agencies to determine any further practical obligations.