Environment Protection and Biodiversity Conservation Amendment (List of Threatened Ecological Communities (EC186)) Instrument 20266

The instrument operates through a declaratory addition to the Commonwealth’s List of threatened ecological communities. The principal concepts that appear in the instrument are the new listing itself, and the ecological definition used to identify the listed community.

Listing concept: The instrument places the Illawarra‑Shoalhaven shrublands on volcanic outcrops under the category heading “ECOLOGICAL COMMUNITIES THAT ARE CRITICALLY ENDANGERED” in the Declaration made under the EPBC Act (Schedule 1). The instrument frames this as an insertion into the existing Declaration under s 178, s 181 and s 183 of the EPBC Act (Schedule 1 heading). The instrument is made under s 184 of the EPBC Act (clause 3), which is the statutory authority enabling instruments that amend the list; the instrument therefore exercises the executive power delegated by that provision to modify the statutory register.

Ecological definition concept: Schedule 2 supplies the substantive descriptive content used to recognise occurrences of the community on the ground. The description identifies vegetation assemblage and dominant taxa, specifying that the shrubland is typically dominated by Melaleuca armillaris (bracelet honey‑myrtle) or Kunzea ambigua (tick bush), with Acacia spp. and Platysace lanceolata potentially dominant after disturbance such as fire. It identifies a range , “from south of Wollongong to north of Bateman’s Bay” , and a substrate and topographic envelope , “exposures of igneous rocky outcrops with shallow soils, typically associated with Bumbo Latite and Milton Monzonite but may occur on other igneous substrates such as Termeil Essexite”, occurring mainly on ridgetops, hills, benches and slopes between the Great Eastern Escarpment and the sea. The Schedule then lists multiple plant taxa that may occur in canopy, understorey, herbaceous layer and ferns, and notes the presence of fauna including species that are listed as threatened at national or state level.

Descriptive versus prescriptive distinction: The instrument’s Schedule provides botanical and habitat criteria; it does not in itself prescribe management measures, approvals or enforcement actions. The text is diagnostic: it supplies the vegetative and substrate features that can be used to determine whether a particular patch of vegetation falls within the newly listed ecological community. The Schedule includes both dominant and commonly associated taxa, variability in structure (dense at times patchy, shrubs to grassy understorey), and notes of post‑disturbance dynamics. It also explicitly notes that rocky outcrops can support moist areas where canopy density is high and soils less skeletal.

Scope and certainty concepts: The description is descriptive rather than spatially precise. It gives a geographic band (Wollongong to Bateman’s Bay) and substrate/topographic qualifiers, but it does not provide cadastral boundaries, coordinates, maps, or explicit thresholds for canopy cover or species composition. That creates a concept of identification based on ecological attributes and expert assessment rather than cadastral certainty.

Legal form concept: The instrument is an amending statutory instrument: its primary legal effect is to alter the content of a Commonwealth Declaration made under the EPBC Act (see clause 4 and Schedule 1 heading). It is not a primary Act, and it contains no separate penalty or permitting regime; instead, its legal relevance derives from its incorporation into the statutory list under the EPBC Act.

Direct decision‑maker: The instrument is made by the Minister for the Environment and Water (Murray Watt). Clause 3 records that the instrument is made under s 184 of the EPBC Act. The Minister’s signature and the dated instrument record that the decision to amend the Commonwealth Declaration and list the community as critically endangered was taken at Ministerial level.

Those with land or management interests in the described area: The Schedule 2 description identifies the ecological community as occurring between south of Wollongong and north of Bateman’s Bay on specific igneous substrates and topographic positions (ridgetops, hills, benches, slopes between the coastal escarpment and the sea). Practically, owners, managers, occupiers and lessees of land within that descriptive range , and persons proposing activities that might interact with exposed igneous outcrops with shallow soils in that band , are the primary on‑the‑ground stakeholders. The instrument itself does not list affected persons; its insertion into the Commonwealth Declaration makes the listing legally available to whatever Commonwealth regulatory or decision processes are engaged by the EPBC Act in relation to ecological community listings.

Government and regulatory bodies: The Department or agency responsible for administering the EPBC Act will hold the amended Declaration and the Schedule 2 description; they will be the body that uses the description for assessments, referrals, or policy development. Other Commonwealth and state agencies involved in planning, environmental assessment, biodiversity conservation, and land management will likely reference the listing because the instrument formally records the community as critically endangered at the Commonwealth level.

Conservation practitioners and researchers: The Schedule 2 descriptive content names specific taxa, substrates, and landscape positions. Ecologists, local governments, conservation NGOs, landcare groups and academic researchers conducting surveys, developing management plans, or advising on development proposals in the Illawarra‑Shoalhaven band will use the Schedule as the formal Commonwealth description to identify occurrences and to inform ecological assessments.

Developers and proponents: While the instrument does not itself state regulatory consequences, proponents with projects in the described range that might affect igneous rocky outcrops supporting the listed vegetation would need to take the listing into account in their environmental due diligence because a Commonwealth listing has been created and recorded. The instrument does not enumerate classes of activities affected; it simply inserts the community into the list that is part of the Declaration under the EPBC Act.

Others: The Schedule notes that the ecological community contains fauna including species listed as threatened at national or state level. Those species’ recovery actions, conservation plans and other listings are not set out in the instrument; nonetheless, agencies or persons with responsibilities for threatened fauna in the region will be attentive to the listing because the community is now identified at Commonwealth level as critically endangered.

Uncertainty and practical reach: The instrument provides a descriptive rather than spatially mapped listing. That means determining who is affected in practice will commonly require ecological survey and expert interpretation against the Schedule 2 description. The instrument does not itself create a register of parcels or coordinates; the “affected” set is therefore defined functionally by occurrence of the described assemblage rather than by predetermined property boundaries in the instrument text.

The instrument itself is declaratory: it inserts the Illawarra‑Shoalhaven shrublands on volcanic outcrops into the Commonwealth Declaration of threatened ecological communities and provides the Schedule 2 description. The instrument does not, within its own text, impose operational duties, grant specific rights, establish permit processes, or create penalties. Clause 4 states that each instrument specified in Schedule 1 is amended or repealed as set out in that Schedule; in this case, that means the existing Declaration is amended by insertion of the named community.

Duties and rights therefore flow from the EPBC Act and any subordinate instruments, policies or administrative practices that rely on the statutory list, rather than from this instrument’s text. The instrument records that it is a “Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 , List of threatened species, List of threatened ecological communities and List of threatening processes” (Schedule 1 heading). It is therefore the formal mechanism by which the Commonwealth’s list is altered, but it does not restate the legal consequences that attaching to a listing , those consequences are set in the EPBC Act and other instruments of Commonwealth law, not in this amending instrument.

What the instrument does provide, in operational terms, is the formal identification criteria (Schedule 2) that will be used when deciding whether a particular area constitutes the newly listed community. Those identification criteria function as the evidentiary baseline for any assessment or administrative decision that requires establishing whether the community occurs at a site. Practically, the Schedule gives ecologists and decision makers a list of diagnostic plant taxa, substrate types (Bumbo Latite, Milton Monzonite, Termeil Essexite), topographic positions and structural attributes (dense at times patchy shrubland, understorey composition, presence of moist areas on rocky outcrops, presence of specific orchids, lilies, ferns and grasses) that are to be considered when determining membership of the community.

The instrument does not specify rights such as compensation, access rights, or financial assistance for landholders. It also does not specify procedural rights (such as appeal rights) relating to the listing itself. Any procedural or substantive rights and duties that arise as a result of the listing must be found in the EPBC Act and associated instruments and policies. The instrument does, however, confer a publicly recorded legal status on the named assemblage, which will be a relevant fact for any rights or duties under other Commonwealth instruments that reference the statutory list.

In short: the instrument establishes a formal, descriptive basis for recognising a critically endangered ecological community; it does not itself create or catalogue the downstream duties, procedural steps or remedies that attach to that listing under the EPBC Act.

The amending instrument contains no standalone penalty, offence, or enforcement provisions. It is declaratory in nature: it places an ecological community on the Commonwealth list of communities and provides the descriptive text that identifies it. Clause 3 records the instrument was made under s 184 of the EPBC Act; it does not, however, incorporate or restate enforcement mechanisms within the instrument itself.

Because this instrument is an amendment to the Declaration under the EPBC Act, any penalties and enforcement mechanisms that may apply to actions affecting a listed ecological community are determined by the EPBC Act and any regulations or administrative instruments made under it. The amending instrument does not set those mechanisms out. Therefore, the instrument should be read as a factual record and descriptive standard rather than as a source of enforcement rules.

Practical consequence for enforcement: where a decision maker or regulator needs to determine whether an activity interacts with a listed ecological community, the Schedule 2 description will be the reference used to decide whether the community is present. If the EPBC Act’s provisions (not reproduced in this instrument) create offences, obligations to refer, or civil penalties linked to impacts on listed ecological communities, those enforcement provisions will apply only to the extent set out in the Act and its subordinate instruments. The instrument itself does not purport to create or limit enforcement paths, nor does it specify civil remedies, criminal penalties, administrative sanctions, or compliance mechanisms.

Record and evidentiary role: because the instrument is part of the Commonwealth Declaration, the Schedule 2 description becomes the official Commonwealth description of the ecological community. In any enforcement context that relies on the statutory list to trigger assessment or compliance action, the Schedule will serve as a primary evidentiary resource to establish whether the community exists on a particular parcel or site and therefore whether any statutory offence or requirement (if applicable under the EPBC Act) is triggered. The instrument therefore indirectly influences enforcement by supplying the identification standard but does not itself prescribe enforcement measures.

The instrument interacts structurally with the EPBC Act because it is made under s 184 and expressly amends the Declaration that operates under s 178, s 181 and s 183 of the EPBC Act (Schedule 1 heading; clause 3). Its immediate legal interaction is therefore with the Commonwealth statutory framework for listing threatened ecological communities as encapsulated in the EPBC Act. The instrument inserts a new named community and descriptive criteria into the Commonwealth Declaration; any other Commonwealth laws, administrative instruments, policies, or decision‑making procedures that reference the Commonwealth’s list of threatened ecological communities will thereby see this new entry as part of that list.

The instrument does not, however, spell out or modify any state or local laws. It does not purport to create or change state planning instruments, property rights, or state statutory obligations. Any interaction with state or territory planning, land use or environmental approval regimes will depend on those jurisdictions’ own laws and on how they choose to treat Commonwealth listings. The instrument merely records a Commonwealth listing and provides the identification criteria that may be drawn on by state agencies or courts when determining local regulatory consequences; it does not itself change state law.

Cross‑reference function: agencies, assessment bodies and courts will need to read the Schedule 2 descriptive text in conjunction with the EPBC Act provisions that are triggered by a listing (the instrument names the relevant EPBC Act sections in its heading but does not reproduce them). The Schedule’s botanical and habitat descriptors are the substantive content that will be referenced by decision makers applying other statutes or policies that require identification of a listed ecological community.

Practical implication for layered approvals: because the instrument creates a new Commonwealth listing, persons preparing environmental assessments under other regulatory regimes should take the Schedule 2 description into account. The instrument’s lack of cadastral mapping means that precise determinations of applicability across overlapping Commonwealth, state and local regulatory regimes will likely be fact‑sensitively determined by ecological survey and expert interpretation.

Absence of express conflict resolution clauses: the instrument contains no provisions addressing conflict or primacy between Commonwealth and state laws. It thus leaves the usual constitutional and statutory allocation of responsibilities intact: the instrument affects Commonwealth lists and, by extension, any Commonwealth statutory mechanisms that rely on the list, while state and local law will continue to operate according to their own statutory frameworks unless otherwise required by the EPBC Act or subsequent instruments.

In summary, the instrument’s legal interaction is with the Commonwealth EPBC Act listing machinery; indirect practical interactions with state, local and other Commonwealth instruments will arise because those other instruments frequently reference the Commonwealth list, but the amending instrument itself does not specify those cross‑jurisdictional mechanics.

This instrument was made and dated 4 March 2026 and signed by the Minister for the Environment and Water, Murray Watt (as shown on the instrument). Clause 1 records the instrument name, although there is an evident typographical error in the name clause where the year appears as “20266” rather than “2026”. Clause 2 specifies the commencement rule: the instrument commences on the day after it is registered. Clause 3 cites the statutory authority for making the instrument , s 184 of the EPBC Act. Clause 4 provides the standard amending‑instrument boilerplate that instruments specified in Schedule 1 are amended or repealed as set out in that Schedule and that any other item in Schedule 1 has effect according to its terms.

Schedule 1 identifies the instrument being amended as the “Declaration under s178, s181, and s183 of the Environment Protection and Biodiversity Conservation Act 1999 - List of threatened species, List of threatened ecological communities and List of threatening processes”. The sole amendment specified is to insert the Illawarra‑Shoalhaven shrublands on volcanic outcrops under the appropriate position in the Declaration’s category heading “ECOLOGICAL COMMUNITIES THAT ARE CRITICALLY ENDANGERED”.

Schedule 2 contains the substantive text that defines the ecological community. The Schedule provides botanical, substrate and geographic descriptors, lists of representative plant taxa by structural layer, and mentions associated fauna including several species listed as threatened at national or state level. No earlier amendment history, repeals of existing listings, or transitional arrangements are specified in the instrument. The instrument does not reference or repeal any prior listings, nor does it supply any saving clauses or retrospective provisions.

Because the instrument is an amending instrument, its amendment history in functional terms is: prior to registration the Declaration did not include the Illawarra‑Shoalhaven shrublands on volcanic outcrops under the “critically endangered” heading; upon commencement (the day after registration) the Declaration will include that community at the appropriate place. The instrument does not provide any further amendment chronology, temporal staging, or conditional phasing of the listing.

Practitioners should note the typographical anomaly in clause 1’s instrument name and that the instrument’s legal effect is immediate subject to registration and the commencement rule in clause 2. There are no ancillary amendments to other instruments identified; the instrument’s entire effect is the insertion of the named community into the Declaration and the provision of the Schedule 2 descriptive text.

The instrument itself contains no record of litigation, court decisions, or administrative appeals. It does not cite any cases, legal precedents or prior determinations, and it does not purport to settle any legal disputes as part of the listing. There is no litigation history recorded in the text that accompanies the listing or the Schedule 2 description.

Given that the instrument is an administrative amendment to the Declaration under the EPBC Act, potential legal challenge pathways, if they exist, would be those established by general administrative law and by the EPBC Act and its procedural rules. This instrument does not set out appeal or review mechanisms; it simply records the list addition and provides the descriptive criteria. The text offers no indication of existing or contemplated litigation, challenge processes, or prior adjudications concerning the listed community.

The Schedule 2 text makes factual ecological statements , for example, identifying dominant species and substrate associations , but the instrument does not provide a statement of evidence, an explanatory memorandum, or an expert report within the instrument text. Any challenge to the listing or its geographic or taxonomic scope would, in practice, turn on the administrative record and the statutory procedures for making list amendments under the EPBC Act; however, those procedures and records are not included in the instrument text provided here. As a result, no litigation history or precedential material is recorded or available within this instrument.

Practitioners looking for litigation context will need to consult administrative records, departmental files, or court databases external to this instrument to identify any challenges brought to the listing decision; none are referred to or summarised in the instrument itself.

1. Declaratory rather than prescriptive instrument: The instrument is an addition to the Commonwealth Declaration and supplies a descriptive standard, but it contains no operational regulatory text, no penalties and no procedural guidance. Users who expect the instrument to contain operational rules or to set out immediate regulatory obligations will not find them here. Clause 3 shows the instrument is made under s 184 of the EPBC Act, but the instrument does not restate what s 178/181/183 or s 184 require in terms of process or legal consequences.

2. Geographic vagueness and absence of mapped boundaries: Schedule 2 states the community “occurs from south of Wollongong to north of Bateman’s Bay” and on specific substrates and landscape positions, but the instrument does not provide cadastral maps, coordinates, or parcel lists. This means site‑by‑site determinations will require ecological survey and professional interpretation against the botanical and substrate criteria in Schedule 2. The absence of mapping increases the likelihood of factual disputes about whether a given patch is part of the listed community.

3. Identification relies on botanical and substrate criteria: The Schedule lists many taxa (dominant, subdominant and associated species) and substrate associations (Bumbo Latite, Milton Monzonite, Termeil Essexite). Ecologists and assessors will therefore need access to reliable taxonomic and geological expertise when making determinations. Taxonomic changes, synonymies or reclassification of plant species over time could complicate identification unless assessments use current taxonomic references.

4. Post‑disturbance variability: The Schedule explicitly notes variation after disturbance events such as fire, where Acacia spp. and Platysace lanceolata can dominate. That introduces potential disputes in cases where vegetation composition has shifted through recent disturbance , determining whether a site is still the listed community or a post‑disturbance variant will require careful ecological judgment.

5. Typographical anomaly in instrument name: Clause 1 records the instrument name ending “20266”. That typographical error may be irrelevant to legal effect but could cause administrative confusion in indexing and referencing. Users should cross‑reference the instrument by date and signature (4 March 2026) and by its content rather than relying solely on the printed title.

6. No list of threatened fauna provided: Schedule 2 records that the ecological community “includes a variety of fauna species, including several species that are listed as threatened at a national or state level” but it does not identify those fauna. Practitioners seeking to understand fauna implications will need to consult other lists or departmental records to identify which threatened fauna are connected with this community.

7. “Appropriate position” insertion: Schedule 1 instructs insertion “In the appropriate position under the category heading ‘ECOLOGICAL COMMUNITIES THAT ARE CRITICALLY ENDANGERED’”. That language presumes the existence of an established ordering and formatting of the Declaration. Where multiple instruments have previously amended the Declaration, verifying the exact placement of the new entry in print and in electronic registers may require checking the official consolidated Declaration.

8. No transitional or grandfathering language: The instrument does not provide transitional arrangements for activities that were authorised, permitted or underway prior to the listing. If the EPBC Act or other related instruments contain such transitional provisions, they are not reproduced here; the amending instrument is silent on how pre‑existing rights or approvals are to be treated.

9. Evidence and record not included: The Schedule provides a descriptive standard but does not include the evidence base, ecological survey reports, consultations, or risk assessments that supported the listing decision. For practitioners challenging or applying the listing, obtaining the administrative record will be necessary to understand the factual basis for the choice of taxa, range and substrates.

10. Interplay with other regulatory regimes left unspecified: The instrument does not address how the new listing should be incorporated into state and local planning frameworks; it leaves that integration to the relevant authorities and to the statutory framework outside the instrument text. Practitioners must not assume the instrument automates any particular state‑level regulatory consequence.

These are practical “gotchas” embedded in what the instrument does not say as much as in what it does say. They point to areas where additional inquiry, expert input and procedural checking will be necessary to operationalise the listing on the ground.

The instrument itself does not set out compliance obligations, permit processes or enforcement steps. Compliance therefore proceeds in two tiers: identifying whether the Schedule 2 ecological community occurs on or near a site, and then determining what regulatory obligations (if any) apply under the EPBC Act or other relevant laws. The instrument supplies the authoritative Commonwealth description to support the first tier.

Practical steps for practitioners and land managers:

1. Confirm commencement and register entry: Note the instrument’s commencement rule (clause 2 , commences the day after registration) and confirm the date of registration on the Commonwealth register to determine the operative date for the listing.

2. Use the Schedule 2 descriptive criteria for ecological surveys: The Schedule provides the formal list of diagnostic attributes , dominant taxa (Melaleuca armillaris, Kunzea ambigua), associated Acacia spp. and Platysace lanceolata, substrate associations (Bumbo Latite, Milton Monzonite, Termeil Essexite), topographic positions (ridgetops, hills, benches, slopes between the Great Eastern Escarpment and the sea) and the spectrum of understorey and herbaceous species. Commission an ecological survey that documents vegetation structure, floristics and substrate. Use current taxonomic references for species names included in Schedule 2.

3. Map occurrences: Because the instrument contains no mapped boundaries, practitioners should prepare spatial mapping showing the location, extent and ecological condition of any stands that correspond to the Schedule 2 description. Include substrate mapping and topographic context to match the instrument’s criteria.

4. Document disturbance history: The Schedule notes post‑disturbance dominance by certain species (for example, Acacia spp. and Platysace lanceolata after fire). Record recent fire, clearing, grazing or other disturbance histories and include them in assessments so that decision makers can interpret compositional variation in light of disturbance regimes.

5. Identify associated threatened fauna: The Schedule mentions fauna, including several species listed as threatened at national or state level, but does not identify them. Cross‑check Commonwealth and state threatened species lists and recovery plans to identify species known or likely to be associated with the community in the relevant area.

6. Record methodology and expert evidence: Build an evidentiary file that explains how the ecological survey relates to the Schedule’s criteria: sampling methods, species lists, cover estimates, substrate descriptions and photographs. This file will be necessary where regulators need to determine whether the community occurs on a site.

7. Engage early with regulators and advisors: Where projects or land uses may intersect with areas matching the Schedule 2 description, liaise with departmental officers responsible for the EPBC Act administration and seek early guidance on whether the listing triggers any statutory obligations. While the instrument does not specify those obligations, the department will be able to advise on applicable procedural steps derived from the EPBC Act.

8. Integrate into planning and environmental due diligence: For prospective transactions, developments or approvals in the Wollongong to Bateman’s Bay band, include a specific screening question referencing the “Illawarra‑Shoalhaven shrublands on volcanic outcrops” and the Schedule 2 description. Add the community to environmental risk registers and desktop screening tools used in due diligence.

9. Consider management planning and conservation advice: Even where no statutory prohibition is specified in the instrument, preparing a management plan that addresses habitat protection, weed and invasive species control, fire management and monitoring of key taxa will be prudent where the community occurs. Use the Schedule’s species and habitat notes to prioritise management actions and monitoring targets.

10. Seek legal and ecological advice where boundaries or taxonomic issues arise: Given the descriptive nature of the Schedule and potential for taxonomic updates or ambiguous boundary determinations, obtain both legal and ecological advice before concluding that a site is (or is not) part of the listed community.

In sum, compliance with the practical implications of this instrument requires careful ecological identification using the Schedule 2 text, contemporaneous mapping and record keeping, and consultation with the relevant Commonwealth administering body to understand what downstream statutory obligations arise under the EPBC Act and related instruments. The instrument gives the formal descriptive standard; applying that standard to real‑world activities requires expert input and administrative engagement.