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 3 October 2007 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 in the
Heard Island and McDonald Islands Fishery, as defined in the
Heard Island and McDonald Islands Fishery Management Plan 2002 in force under the Fisheries Management Act 1991
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 9 May 2017.
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 9 May 2017.
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 authority has management responsibility 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 23 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 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. One of the mechanisms under this Act is the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. Pursuant to this, an amendment was made to the list of exempt native specimens in accordance with Section 303DC of the EPBC Act, revoking previous conditions and imposing new ones that allow continued export of specimens derived from fish or invertebrates, taken in the Heard Island and McDonald Islands Fishery, until 9 May 2017. The decision to amend the list was made in consultation with relevant authorities and stakeholders, including the Australian Fisheries Management Authority, and considered the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. The policy objective behind this amendment is to ensure continued export of these specimens while maintaining ecological sustainability of the fishery’s management arrangements.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment concerning the List of Exempt Native Specimens applies to fish and invertebrate specimens taken in the Heard Island and McDonald Islands Fishery. These specimens are exempt from trade control provisions if they belong to species not listed under Part 13 of the EPBC Act. The instrument revokes existing conditions on the exemption and imposes new conditions, namely that the specimens must be lawfully taken and the exemption applies until 9 May 2017. The legislative instrument is applicable nationally, under the Commonwealth's jurisdiction, and aligns with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. This amendment allows for the continued export of the specified specimens until the set date, facilitating trade while ensuring compliance with environmental protection laws. The decision-making process involved consultation with relevant authorities and public comment, as required by the EPBC Act.
Key Provisions
The main sections of the instrument amend the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DC revokes conditions that previously applied to the inclusion of certain specimens in the list of exempt native specimens, while Section 303DB imposes new conditions for the continued exemption. These specimens include those derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, and taken within the Heard Island and McDonald Islands Fishery. The new conditions require that the specimens must be taken lawfully and remain exempt until 9 May 2017.
The Act imposes several obligations on the parties involved. Firstly, it mandates that the Minister for Sustainability, Environment, Water, Population and Communities consult with relevant Commonwealth ministers, state ministers, and other appropriate persons and organisations before amending the list of exempt native specimens. In this case, the Delegate of the Minister consulted with the Australian Fisheries Management Authority, which has management responsibility for the fishery in question. Additionally, the proposal was advertised on the Department's website, and comments from interested parties were invited and considered before the decision was made.
The instrument does not introduce new offences or penalties, but it does specify the civil and administrative consequences for non-compliance with the conditions set forth. Any specimens taken or traded in violation of the conditions would not be exempt from the trade control provisions, potentially leading to legal action under the EPBC Act. The maximum penalties for breaches of the EPBC Act can include substantial fines and, in some cases, imprisonment, depending on the severity of the offence.
By amending the list of exempt native specimens and imposing new conditions, the Act ensures that the trade of certain specimens from the Heard Island and McDonald Islands Fishery remains lawful until the specified date. This change aligns with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, ensuring that the management arrangements for the fishery meet the criteria for ecological sustainability.