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 (the EPBC Act) provides for the establishment of a list of exempt native specimens. Specimens included on the list are exempt from the trade control provisions that apply to regulated native specimens.
The effect of this instrument is to include the following specimens to the list of exempt native specimens and to make those inclusions subject to the notations specified below:
- 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 Western Australian Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery, in force under the Western Australian Fish Resources Management Act 1994.
The inclusion of the specimens in the list is subject to the following notations:
- The specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- The specimens are included on the list until 26 April 2009.
Listing of the specimens described above on the list of exempt native specimens will allow continued export of these specimens until 26 April 2009.
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 fisheries management arrangements.
Subsection 303DC(3) of the EPBC Act provides that before amending the list, the Minister must consult such other Minister or Ministers, including a Minister or Ministers of each State and self-governing Territory and such other persons and organizations as the Minister considers appropriate. In this instance, the Delegate of the Minister for Environment, Heritage and the Arts consulted with the Western Australian Minister for Fisheries, the Commonwealth Minister for Agriculture, Fisheries and Forestry and the Department of Fisheries, Western Australia as the Ministers and Department have management responsibilities for the fishery concerned. In addition, the proposal to amend the list of exempt native specimens was advertised on DEWHA’s website and comment was invited from interested people for a period greater than 20 days. All comments received were taken into account in the decision to include the fishery on the list of exempt native specimens.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument commences on 26 March 2009.
Unique Identifying Number: EPBC303DC/SFS/2009/08
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, particularly in relation to the regulation of native specimens and their trade. This Act establishes mechanisms for the protection of native flora and fauna, and includes provisions for listing specimens that are exempt from trade controls. The EPBC Act was enacted by the Australian Parliament to ensure that the trade of native specimens is managed in an ecologically sustainable manner. The legislative instrument F2009L01184 amends the list of exempt native specimens under Section 303DC of the EPBC Act to include certain specimens derived from fish or invertebrates taken in the Western Australian Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery, provided they are taken lawfully and are not from species listed under Part 13 of the EPBC Act. This amendment allows for the continued export of these specimens until 26 April 2009, subject to specific notations. The decision to amend the list was made in consultation with relevant state and federal ministers and departments, and after considering public comments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) Amendment of the List of Exempt Native Specimens, pursuant to Section 303DC, specifies the inclusion of certain specimens derived from fish or invertebrates into the list of exempt native specimens. This amendment applies to specimens taken in the Western Australian Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery under the Western Australian Fish Resources Management Act 1994, provided these specimens are not from species listed under Part 13 of the EPBC Act. The inclusion of these specimens on the list exempts them from the trade control provisions that apply to regulated native specimens, allowing continued export until 26 April 2009. The decision to include these specimens was informed by the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, and the Minister for Environment, Heritage and the Arts consulted with relevant Western Australian and Commonwealth ministers and departments, as well as inviting public comment on the proposal. This legislative instrument is subject to the requirements of the Legislative Instruments Act 2003 and commenced on 26 March 2009.
Key Provisions
The main operative sections of this legislation (Section 303DC) establish a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. This amendment adds specific specimens derived from fish or invertebrates, taken within the Western Australian Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery, to this list. These specimens are exempt from trade control provisions if they meet two criteria: they must be derived from species not listed under Part 13 of the Environment Protection and Biodiversity Conservation Act 1999, and they must have been taken lawfully. Furthermore, the exemption applies until 26 April 2009. This change allows for the continued export of these specimens during this period.
The Act imposes several obligations and requirements on the parties involved. Firstly, any specimens included on the list must be derived from fish or invertebrates taken within the specified fishery. Secondly, these specimens must not belong to species listed under Part 13 of the EPBC Act. Additionally, it is mandatory that the specimens were taken lawfully, in accordance with the Western Australian Fish Resources Management Act 1994. The Act also requires that any changes to the list of exempt native specimens be preceded by consultation with relevant Ministers and stakeholders, as well as an opportunity for public comment. In this case, consultations were held with the Western Australian Minister for Fisheries, the Commonwealth Minister for Agriculture, Fisheries and Forestry, and the Department of Fisheries, Western Australia. Furthermore, the proposal was advertised on the Department of the Environment, Water, Heritage and the Arts' website, and comments were invited from interested parties for over 20 days.
For any breaches of the provisions outlined in this legislation, the Act does not specify particular offences, penalties, or civil/criminal consequences. However, given that this is an amendment to the Environment Protection and Biodiversity Conservation Act 1999, any breaches may potentially lead to penalties as outlined in that Act. Under the EPBC Act, breaches of its provisions can result in both civil and criminal penalties. Civil penalties can include fines of up to $66,000 for individuals and up to $330,000 for bodies corporate. Criminal penalties can include fines of up to $6,600 for individuals and up to $33,000 for bodies corporate, as well as imprisonment for up to two years for serious offences. The specific penalties depend on the nature and severity of the breach.