The central concept is the recovery plan under the EPBC Act. A recovery plan is a written document that sets out the research and management actions necessary to stop the decline of, and support the recovery of, a listed threatened species or ecological community. It must identify threats, define recovery objectives and criteria, and specify actions, costs, and timelines. The EPBC Act requires the Minister to make a recovery plan for each listed threatened species and each listed threatened ecological community (subject to priorities). However, subsection 269A(7) allows the Minister to adopt a plan made by a State or an agency of a State as a recovery plan, provided that plan has been made under state law and is consistent with the EPBC Act. This adoption mechanism is the legal vehicle used here. Adoption gives the state plan the same legal force as if the Minister had made it personally. The instrument also revokes previous adoptions, which is done under subsection 269A(7) read with section 33(3) of the Acts Interpretation Act 1901 (which permits revocation of instruments). The concept of a listed threatened species and listed threatened ecological community is crucial: the instrument applies only to those species and communities that already appear on the lists under Part 13, Division 1 of the EPBC Act. The instrument does not alter those listings; it merely supplies or replaces recovery plans for listed entities. The instrument also illustrates the concept of multi species plans: several of the adopted plans cover multiple species (e.g., the Kangaroo Island plant recovery plan covers ten plants, the three orchid plan covers three species, and the rock wallaby plan covers five taxa). The EPBC Act does not require single species plans; multi species plans are common. The instrument also names specific subspecies and races (e.g., Petrogale lateralis hacketti, P. lateralis lateralis, MacDonnell Ranges race, West Kimberley race) which are themselves listed as threatened. The adoption binds those subspecies into the same plan. Finally, the instrument uses the term ecological community for two entries: the Weeping Myall shrubland and the Peppermint Box grassy woodland. These are listed ecological communities, and the plans are for their recovery. The concept of an ecological community under the EPBC Act is a naturally occurring group of native plants, animals and other organisms that interact in a unique habitat; its listing triggers similar protections as for species.

The immediate party affected is the Commonwealth Minister for the Environment and the Department. By adopting state plans, the Minister is bound not to take any action inconsistent with those plans (section 268(2) of the EPBC Act). The instrument also affects the state agencies that prepared the plans: the New South Wales Office of Environment and Heritage, the South Australian Department of Environment, Water and Natural Resources, and the Western Australian Department of Parks and Wildlife (formerly Department of Environment and Conservation). Those agencies’ plans now have federal legal force, which may constrain state actions that would be inconsistent with the plans. More broadly, landholders on whose land the listed species or ecological communities occur are affected, because recovery plans may identify specific management actions, such as fencing, weed control, fire management, or restrictions on land use. Proponents of development projects are affected if their projects are in areas where these species or communities are present and are likely to be assessed under the EPBC Act. The existence of an adopted recovery plan is a relevant consideration in deciding whether a proposed action is likely to have a significant impact on a listed threatened species or ecological community, and in deciding whether to grant a permit or approval under Part 9. Local government authorities that issue planning approvals may need to consider the adopted recovery plans if their decisions involve a Commonwealth action. The instrument directly names specific entities: the eastern bristlebird (a bird found in New South Wales and Queensland), Carnaby’s cockatoo (a WA bird), the quokka (a WA marsupial), the western swamp tortoise (a WA reptile), and the various plants and ecological communities listed. Anyone whose interests intersect with these species or communities must now refer to the newly adopted plans, not the revoked ones. For the two revoked plans (western swamp tortoise and Spalding blown grass), the revocation means the 2004 and 2000 plans are no longer the operative Commonwealth recovery plans; the new adopted plans (2010 and 2012) take effect. Anyone relying on the older plans for compliance must update their references.

The EPBC Act imposes a key duty on the Commonwealth Minister and Commonwealth agencies: they must not take an action that is inconsistent with a recovery plan. Section 268(2) states that the Commonwealth must not take any action that is inconsistent with a recovery plan. This duty extends to all adopted recovery plans, including the eleven adopted by this instrument. The duty is enforceable; a third party could bring proceedings for an injunction if the Minister proposes an action inconsistent with a plan. The instrument does not create any new duties on private persons directly, but it indirectly affects them through the impact assessment process. A proponent of an action that may have a significant impact on a listed threatened species or ecological community must refer the action to the Minister. The existence of a recovery plan is a key factor in determining whether the action is likely to have a significant impact. If the action is likely to be inconsistent with a recovery plan, that is strong evidence of a significant impact, triggering a requirement for assessment and approval. Proponents therefore have a practical duty to review the relevant recovery plan and design their project to avoid inconsistency. Public rights of participation arise: recovery plans are public documents, and the public may comment on draft recovery plans. However, under the adoption mechanism, a state plan is already made; there is no public comment period before adoption. The rights of third parties to challenge the instrument are limited. The instrument is a legislative instrument, so it is reviewable under the Administrative Decisions (Judicial Review) Act 1977 if it affects a person’s interests. However, the Minister has broad discretion to adopt state plans. Challenges would need to show that the adoption was legally unreasonable or procedurally flawed. Those who supported the revoked plans (e.g., conservation groups) might argue that the revocation was inappropriate, but the instrument does not give reasons. The instrument also confers a right on the Minister to revoke adoption at any time, subject to the Acts Interpretation Act. There is no statutory right of appeal against the adoption or revocation itself.

This instrument itself contains no penalty provisions. Enforcement of recovery plan obligations arises under the broader EPBC Act. The most direct penalty is for contravening section 268(2) if the Commonwealth takes an action inconsistent with a recovery plan. That is a civil penalty provision, with maximum penalties of up to 550 penalty units (currently $187,000 for an individual, $935,000 for a body corporate, indexed). However, there have been few if any instances of the Commonwealth being penalised for this; the provision is more of a directional constraint. For private proponents, the penalty for taking an action that has a significant impact on a listed threatened species or ecological community without approval is up to 550 penalty units for an individual and 5,500 penalty units for a body corporate (currently $1,870,000 for a body corporate), plus potential daily penalties. Although the recovery plan itself is not the source of the prohibition, inconsistency with a recovery plan is a strong indicator that an action will have a significant impact. Failure to consider a recovery plan in an environmental assessment could also result in the Minister’s decision being challenged for failing to take a relevant consideration into account. Enforcement options include civil penalty proceedings by the Minister, injunctions, and remediation orders. The instrument’s registration on the Federal Register of Legislative Instruments means it is a legislative instrument, and if it were not registered, it would be of no effect (under the Legislation Act 2003, section 38). It was registered on 17 January 2014, so it is valid. Criminal penalties apply for knowingly providing false or misleading information in connection with recovery plans, but that is not specific to this instrument. In practice, the enforcement leverage of an adopted recovery plan is that it gives the Commonwealth grounds to refuse or condition approvals for projects that would undermine the plan’s objectives. State agencies may also enforce their own laws under which the plans were made; the adoption does not replace state enforcement.

The instrument operates within the framework of the EPBC Act, specifically Part 13 Division 5 (recovery plans). It does not amend the Act. The adoption of state plans means those plans become “recovery plans” under the EPBC Act and must be considered alongside other EPBC instruments. The instrument does not affect any state legislation. The state plans were made under state conservation laws (e.g., NSW Threatened Species Conservation Act 1995, now Biodiversity Conservation Act 2016; SA National Parks and Wildlife Act 1972; WA Wildlife Conservation Act 1950). The state plans retain their status under state law, but the adoption gives them an additional federal layer. If a state plan is later amended or revoked under state law, the Commonwealth adoption may remain in place for the version that was adopted; the Commonwealth would need a new instrument to adopt the amended version. This creates a risk of divergence. The instrument also interacts with the Environment Protection and Biodiversity Conservation Regulations 2000, which list species and ecological communities. The recovery plans may refer to actions that are subject to other Commonwealth legislation, such as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 if sites are involved, or the National Environmental Biosecurity Response Agreement if a pest or disease is involved. In the case of the rock wallaby plan, it may interact with state fauna conservation acts and land management laws. The instrument also interacts with the Assessment and approval provisions of Part 9 of the EPBC Act. Under section 527E, the Minister must consider a recovery plan when deciding whether to approve an action under Part 9. The instrument does not change the assessment pathways but shifts the content to the newly adopted plans. The Judicial review regime under the Administrative Decisions (Judicial Review) Act and the ADJR Act applies to decisions made under the EPBC Act that refer to these plans. The instrument itself may be reviewable under section 5 of the ADJR Act as a decision to adopt or revoke, but the High Court in Minister for Immigration v Brough (not directly relevant here) and other cases have limited review of legislative instruments. The instrument also interacts with the Government Procurement Rules if recovery actions involve contracting; but that is indirect.

This instrument was made on 17 January 2014 and registered on the Federal Register of Legislative Instruments. It is a stand alone instrument; the text does not indicate it amends any earlier instrument. The instrument revokes two prior adoptions, but those revocations are not themselves amendments to the EPBC Act; they amend the set of applicable recovery plans. The instrument itself could have been amended or replaced later by a subsequent instrument under section 269A(7). Whether later instruments have occurred is not stated in the source; an updated search of the Federal Register of Legislation would be required to determine its current status. The instrument does not refer to any transitional provisions or sunset dates. Under the Legislation Act 2003, legislative instruments are automatically repealed if not tabled within a certain time, but that is unlikely to have occurred. The instrument does not state that it supersedes any earlier adoption of the same plans; it revokes only two specific plans. For the other nine plans, there may have been prior adoptions that remain in place? The source only mentions adoption of these eleven plans; it does not say it revokes any earlier adoption of those plans. So if any of the eleven plans had been previously adopted, that earlier adoption would presumably be impliedly revoked because a later inconsistent adoption would prevail, but that is not explicit. The absence of amendment history means that as of the date of the instrument, it was a fresh snapshot. For the purposes of this analysis, we treat it as the current and final instrument unless the user indicates otherwise. The usual practice for such instruments is that they are updated every few years as new state plans are produced. The instrument therefore has a practical “shelf life” tied to the state plans’ currency. The 2010-2013 plans may have been superseded by newer versions by 2025; the Commonwealth would need a new instrument to adopt those. This instrument remains legally in force until revoked or overridden.

The instrument itself has not been the subject of reported litigation based on the source provided. However, recovery plan adoption under section 269A(7) has been litigated in broader contexts. The leading case on the EPBC Act’s recovery plan provisions is Friends of Hinchinbrook Society Inc v Minister for the Environment (No 2) (1997) 77 FCR 209, which predates this instrument but established that the Minister has a duty to consider recovery plans before acting. That principle applies to adopted plans. More recently, Greenpeace Australia Pacific v Minister for the Environment (2020) 377 ALR 588 considered recovery plans in the context of significant impact determinations, but not specifically adoption mechanisms. There have been cases challenging the adequacy of recovery plans, such as The Wilderness Society Inc v Minister for the Environment [2013] FCA 1416, where the Court held that a recovery plan must contain sufficient detail to guide decision making. If an adopted state plan were too vague, it might be challenged as not meeting the EPBC Act’s requirements. The instrument’s revocation of the Western Swamp Tortoise 2004 plan could have been challenged if it left a gap, but no such challenge is known. The instrument’s adoption of the 2010 plan for the same species would mitigate that. The High Court case of Plaintiff M61/2010E v Commonwealth (2010) dealt with offshore processing but not recovery plans. There is no known litigation against this specific instrument. If a party were to challenge it, grounds might include that the state plan was not “made under the law of a State” (section 269A(7)(a)), or that the plan is inconsistent with the EPBC Act’s objectives. The instrument uses the phrase “or agencies of those States,” which tracks the language of the provision. The instrument does not contain a statement of reasons, which may be a vulnerability under administrative law if a party claims the delegate did not properly consider the criteria.

Several hidden traps arise from this instrument. First, inconsistent scope: The adopted plans often cover more species than those explicitly listed in the instrument’s table. For example, the rock wallaby plan covers five species including the short eared rock wallaby, monjon, nabarlek, and Rothschild’s rock wallaby, yet only the black footed rock wallaby and its subspecies/ races are listed in the instrument. The plan becomes a recovery plan under the EPBC Act for all species mentioned in the plan, not just those listed in the table, because the instrument adopts “the respective plans” without limitation. This means the plan might impose obligations for species not listed under the EPBC Act, though the Commonwealth’s duties under section 268(2) may only apply to listed species. The interaction is ambiguous. Second, timing of revocation: The instrument revokes the 2004 Western Swamp Tortoise plan and adopts the 2010 plan. But the revocation and adoption take effect on the same day, so there is no gap. However, if a person relied on the 2004 plan before that date, they may have made decisions based on it. The new plan could contain different or more restrictive actions. Third, state plan version control: The adopted plans were written in 2010-2013. Some may no longer reflect current knowledge. If the state has updated the plan, the Commonwealth adoption still refers to the old version. The instrument does not contain a dynamic reference that automatically adopts future versions. A proponent checking the state’s website might find a newer version, but the legally operative version under the EPBC Act is the one specified in the instrument. Fourth, multi state plan for orchids: The orchid plan covers South Australia and Victoria, but the instrument only lists South Australia in the header. Victoria is not mentioned as a source state. Yet the plan was jointly prepared by the South Australian Department of Environment, Water and Natural Resources and the Victorian Department of Sustainability and Environment. The instrument adopts it only from South Australia. Whether this affects enforceability in Victoria is unclear; the EPBC Act adoption likely makes it a Commonwealth recovery plan for the whole of Australia, but the source questions whether the “State” requirement is satisfied for Victoria. Fifth, ephemeral ecological communities: The Weeping Myall shrubland of the Hunter Valley is an ecological community; its plan may have been prepared specifically because of coal mining pressures. The adoption may create expectations that the Minister will not approve mining actions that are inconsistent with the plan. However, the plan is not a veto; it is one factor. Sixth, lack of automatic sunset: There is no expiry date; the instrument continues until revoked. If plans become obsolete, they still have legal force. Seventh, public notice: The instrument does not mention any public consultation. Adoption under s 269A(7) does not require public comment, unlike making a new plan. This can trap stakeholders who expect the usual process.

Compliance with this instrument is indirect; it imposes obligations on the Commonwealth and influences project approvals. For Commonwealth agencies, the first step is to identify which of the adopted recovery plans apply to their area of operations. They must obtain the actual plans (the instrument provides citations and dates). They must then ensure that any action they take (e.g., funding a project, issuing a permit, managing Commonwealth land) is not inconsistent with the plan. Consistency involves checking the plan’s objectives, threat abatement actions, and management prescriptions. If inconsistency is unavoidable, the agency should seek a variation of the plan (which requires a new instrument). For state agencies, the adopted plans become federal obligations. They should coordinate with the Commonwealth to ensure that any state action that is also a Commonwealth action (e.g., state land clearing approvals that involve a federal Act) does not conflict. For project proponents, the compliance pathway is: (a) determine whether the proposed action occurs in a location that might host one of the listed species or ecological communities. (b) If yes, obtain the relevant adopted recovery plan from the state agency or from the Federal Register. (c) Assess whether the action would be inconsistent with the plan. Inconsistency includes actions that would directly contradict a specific management action (e.g., “do not remove fallen timber” where the action proposes to clear fallen timber) or that would undermine recovery objectives. (d) If inconsistency exists, the proponent should factor this into the referral under section 95A of the EPBC Act. The existence of the recovery plan will be a critical factor in the Minister’s determination of whether the action is a controlled action. (e) If the action is a controlled action, the assessment documentation must address how the proposal accounts for the recovery plan. (f) If the proponent is uncertain, they should seek pre referral advice from the Department. For land managers (including private landholders), compliance means reviewing the plan for any actions that are required (e.g., weed control, fire management) and considering whether voluntary implementation is wise to avoid future legal complications. There is no automatic duty on private landholders to implement a recovery plan, but if a Commonwealth permit is needed, the plan becomes relevant. For conservation groups, compliance means monitoring whether the Commonwealth and state agencies are acting consistently with the plans and, if not, considering enforcement action. Finally, anyone affected should check the Federal Register of Legislation for any subsequent instruments that may have superseded this 2014 instrument. As of 2025, a search is recommended.