EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Instrument under section 303EC(1)(a)
(Issued under the Authority of the Minister for Sustainability,
Environment, Water, Population and Communities)
Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), a live specimen is allowed to be imported only if it is included on the list of specimens taken to be suitable for live import (live import list).
The list was established in accordance with s.303EB of the EPBC Act and has two Parts. Part 1 comprises species exempt from the requirement for an import permit under the EPBC Act. Part 2 comprises species that can be imported with a permit under the EPBC Act.
The effect of this instrument is to amend the listings for 26 ornamental fish taxa on Part 1 of the list of specimens suitable for live import. The amendments include the addition of ‘standard length’ to all 26 species and the specification of, or an increase in, the minimum size restriction for five species to aid the identification of imported specimens at the border. ‘Standard length’ is accepted terminology that is widely understood in the ornamental fish industry, and refers to measurement from the snout to the end of the caudal peduncle (the position where the tail fin joins the body). These amendments will reduce the potential for import of non-listed species and provide greater clarity for importers and border officials alike.
Amendments to the live import list can be made either on the initiative of the Minister or by application. This list amendment was initiated by the Minister under s.303EC of the EPBC Act. In determining whether to amend the size restrictions for these fish on the live import list, the Minister considered the proposed amendments in a recommendation report prepared by the Department of Sustainability, Environment, Water, Population and Communities, in consultation with the Department of Agriculture, Fisheries and Forestry – Biosecurity.
In accordance with s.303EC(3), appropriate state, territory and Australian Government ministers were consulted. In this case, the Department of Sustainability, Environment, Water, Population and Communities consulted with all relevant state and territory ministers for the environment, conservation and fisheries (or their delegates).
While most government respondents supported the proposals, a view was put forward in one submission that all of the ornamental fish species being considered should be subject to a risk assessment. A risk assessment is not considered necessary as the proposed changes are to species already approved for importation, and the amendments will not increase or create new risks to the Australian environment. On the contrary, they will be advantageous in that they will reduce the risk of illegal fish imports by aiding identification at the border.
In accordance with s.303EF of the EPBC Act, the recommendation report was published on the Department of Sustainability, Environment, Water, Population and Communities’ website and public comments sought. Key industry members were also contacted directly. Four public responses were received. The comments were generally supportive of the amendments.
The Minister considered that amending the restrictions of the listed species will aid in the positive identification of live ornamental fish imports and reduce the occurrences of non-listed species being imported.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This instrument will come into effect on the date of gazettal in the Commonwealth of Australia Gazette.
Statement of Compatibility with Human Rights
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). This legislative instrument does not engage any of the applicable rights or freedoms.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive environmental protection and biodiversity conservation in Australia. It was introduced by the Australian Parliament to provide a robust framework for the protection of the environment, particularly in relation to matters of national environmental significance. The Act aims to ensure that development and other activities do not harm the environment or biodiversity. This legislative instrument, issued under the authority of the Minister for Sustainability, Environment, Water, Population and Communities, amends the live import list for ornamental fish to include the specification of 'standard length' for all 26 taxa and adjusts the minimum size restrictions for five species. This change is intended to provide clearer guidelines for importers and border officials, thereby reducing the risk of illegal imports of non-listed species and ensuring compliance with the EPBC Act. The amendments were made following consultations with relevant departments and state and territory ministers, and in consideration of public comments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the import of live specimens, such as ornamental fish, into Australia. This legislation applies to individuals and entities seeking to import live specimens, including those in the ornamental fish industry. The Act’s geographic reach is national, covering all states, territories, and external territories of Australia. The Act allows for the import of live specimens only if they are listed on a specific live import list, which is divided into two parts: species exempt from an import permit and species that can be imported with a permit. This legislative instrument amends the listings for 26 ornamental fish taxa on Part 1 of the list by adding 'standard length' and adjusting minimum size restrictions for five species to facilitate accurate identification at the border. These amendments aim to prevent the illegal import of non-listed species and provide clarity for both importers and border officials. The Minister for Sustainability, Environment, Water, Population and Communities initiated these changes under section 303EC of the EPBC Act, following consultations with relevant state, territory, and federal ministers, as well as public feedback. The instrument, subject to the Legislative Instruments Act 2003, will come into effect upon gazettal in the Commonwealth of Australia Gazette.
Key Provisions
The primary operative sections of this legislation, specifically under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), are sections 303EC(1)(a), 303EB, and 303EF. Section 303EC(1)(a) outlines the process for amending the list of specimens suitable for live import, ensuring that only those species listed can be imported. Section 303EB establishes the list itself, dividing it into Part 1, which includes species exempt from requiring an import permit, and Part 2, which lists species that can be imported with a permit. Section 303EF mandates that any recommendation report on such amendments be published and that public comments be sought.
The Act imposes specific obligations and requirements on the Minister for Sustainability, Environment, Water, Population and Communities, as well as relevant departments and industry stakeholders. The Minister must initiate amendments to the live import list, considering recommendations from the Department of Sustainability, Environment, Water, Population and Communities, often in consultation with other government agencies such as the Department of Agriculture, Fisheries and Forestry – Biosecurity. Additionally, the Act requires the Minister to consult with appropriate state, territory, and Australian Government ministers before making amendments. Public consultation is also mandatory, where recommendation reports must be published and comments from the public and industry members sought and considered.
The Act delineates specific offences, penalties, and consequences for breaches related to the importation of live specimens. While the text does not explicitly state penalties for non-compliance with the amended list, it can be inferred that failure to adhere to the requirements of the EPBC Act could lead to legal ramifications, including fines or other sanctions as outlined in the primary Act. The risk of illegally importing non-listed species could also result in significant penalties under broader environmental protection laws.
Public comments on the proposed amendments were largely supportive, indicating an acceptance of the changes aimed at improving identification processes at the border. However, one submission suggested that all ornamental fish species should undergo a risk assessment. The Minister, however, deemed this unnecessary as the proposed amendments do not increase or create new risks, instead they aim to reduce the potential for illegal imports by aiding identification. The legislative instrument is compatible with human rights as it does not engage any applicable rights or freedoms recognised in international instruments.