EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Amendment of the List of Exempt Native Specimens in accordance with Section 303DC
Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the establishment of a list of exempt native specimens. Specimens included in the list are exempt from the trade control provisions that apply to regulated native specimens.
The effect of this instrument is to revoke the conditions to which the inclusion of the following item in the list of exempt native specimens on 24 September 2010 is subject:
- specimens that are or are derived from fish or invertebrates, other than specimens that belong to species listed under Part 13 of the EPBC Act, taken lawfully by vessels operating in waters outside the outer limits of the exclusive economic zone of all countries (High Seas) including Australia and its external territories not already covered under existing Australian fisheries management regimes
and impose the following conditions to which the inclusion of the specimens in the list is subject:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully, and
- the specimens are included in the list until 24 May 2013.
Revoking the conditions and imposing the above conditions to which the inclusion of the specimens in the list of exempt native specimens is subject will allow continued export of these specimens until 24 May 2013. The only effect of this amendment is to extend this date.
In determining to include the specimens in the list of exempt native specimens regard was had to the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’. Those guidelines establish the criteria for assessment of the ecological sustainability of the relevant fishery’s management arrangements.
Subsection 303DC(3) of the EPBC Act provides that before amending the list, the Minister for Sustainability, Environment, Water, Population and Communities must consult such other Commonwealth minister or ministers and such other minister or ministers of each state and self-governing territory, as the minister considers appropriate. The minister may also consult with such other persons and organisations as the minister considers appropriate. In this instance, the Delegate of the Minister for Sustainability, Environment, Water, Population and Communities consulted with the Australian Fisheries Management Authority as the Australian Fisheries Management Authority has management responsibilities for the fishery concerned. In addition, the proposal to amend the list of exempt native specimens was advertised on the Department of Sustainability, Environment, Water, Population and Communities’ website and comment was invited from interested people for a period of 21 business days. All comments received were taken into account in the decision to include specimens derived from the fishery in the list of exempt native specimens.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This legislative instrument does not engage any of the applicable rights or freedoms. 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.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens instrument was enacted to address a specific issue within the legislative framework of the EPBC Act, concerning the regulation of trade in native specimens. The problem it sought to resolve was the need to exempt certain lawfully taken fish and invertebrate specimens from the stringent trade control provisions applicable to regulated native specimens, while ensuring that such exemptions do not undermine ecological sustainability. This instrument was introduced by the Delegate of the Minister for Sustainability, Environment, Water, Population and Communities, following the requisite consultation process and public notice as mandated by the EPBC Act. The policy objective underpinning this amendment was to facilitate the continued export of these specimens until a specified date, in alignment with the Australian Government’s guidelines for the ecologically sustainable management of fisheries. The instrument ensures that these specimens remain exempt from trade restrictions, provided they were taken lawfully and meet the conditions outlined in the amended list.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, as per F2012L02196, pertains to specimens derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, that have been lawfully taken by vessels operating beyond the outer limits of the exclusive economic zones of all countries, including Australia and its external territories. This amendment revokes prior conditions for specimens included in the list on 24 September 2010 and imposes new conditions that such specimens must have been taken lawfully and will remain in the list until 24 May 2013. The amendment extends the date of exemption, facilitating continued export of these specimens until the specified date. The decision to include these specimens in the list was informed by the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’. The Minister for Sustainability, Environment, Water, Population and Communities consulted with relevant authorities, including the Australian Fisheries Management Authority, and invited public comment on the proposal, which was advertised on the Department of Sustainability, Environment, Water, Population and Communities’ website. This legislative instrument, compatible with human rights, came into effect the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of this legislation are Section 303DB and Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (subsections 303DB(3) and 303DC(3)). Section 303DB establishes a list of exempt native specimens, exempting them from trade control provisions. Section 303DC enables the Minister to amend this list by revoking existing conditions and imposing new ones. This instrument revokes the conditions on the inclusion of specimens derived from fish or invertebrates, other than those from species listed under Part 13 of the EPBC Act, taken lawfully in waters outside the outer limits of the exclusive economic zone of all countries, including Australia and its external territories. It imposes new conditions that the specimens must be taken lawfully and that they remain on the list until 24 May 2013.
The obligations and requirements imposed by this legislation are primarily administrative. The Minister for Sustainability, Environment, Water, Population and Communities must consult with relevant Commonwealth ministers, state ministers, and other persons and organisations as appropriate before amending the list. In this case, the Delegate of the Minister consulted with the Australian Fisheries Management Authority, which has management responsibilities for the concerned fishery. The proposal to amend the list was also advertised on the Department's website, and comments were invited from interested parties for 21 business days, with all received comments being taken into account.
Under this Act, breaches of the trade control provisions or non-compliance with the imposed conditions could lead to civil or criminal consequences. However, the specific offences, penalties, or consequences are not detailed in this particular legislative instrument. Generally, the EPBC Act provides for various offences related to the unauthorised trade of native specimens, which can incur substantial penalties. For instance, unauthorised trade in regulated native specimens can result in fines of up to $330,000 for individuals and up to $1.65 million for corporations, as well as potential imprisonment terms. However, these general provisions are not explicitly addressed in this specific instrument, which focuses on the administrative process of listing and delisting specimens.