Amendment of List of Exempt Native Specimens - Macquarie Island Toothfish Fishery, Commonwealth (28/11/2005)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 was enacted to provide for the protection of the Australian environment, particularly with respect to matters of national environmental significance. This legislation aims to address gaps in environmental protection by providing a comprehensive framework that includes the regulation of the trade of native specimens. The Act was introduced by the Commonwealth Parliament to ensure that activities impacting the environment are managed in a sustainable manner. One of the Act's mechanisms is the establishment of a list of exempt native specimens, which are not subject to the trade control provisions applicable to regulated native specimens. The Act was amended in 2005 through legislative instruments to include specific specimens in this list, in line with the policy objective of facilitating the ecologically sustainable management of fisheries. This amendment, detailed in the legislative instrument F2005L03827, was subject to consultation with relevant ministers and authorities, including the Australian Fisheries Management Authority, to ensure compliance with the Australian Government's Guidelines for the ecologically sustainable management of fisheries.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (the Act) governs the protection of the environment, biodiversity, and heritage sites across Australia. Section 303DC of the Act enables the Minister for the Environment and Heritage to amend the list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. This particular amendment adds specimens derived from fish or invertebrates taken in the Macquarie Island Toothfish Fishery to the list of exempt native specimens, subject to certain conditions. These conditions include that the specimens or the fish or invertebrates from which they are derived must have been taken lawfully and are included on the list until 28 November 2010. The amendment aims to facilitate the continued export of these specimens for the next five years, in line with the Australian Government’s Guidelines for the ecologically sustainable management of fisheries. The decision to include these specimens was made after consultations with relevant Ministers and authorities, including the Australian Fisheries Management Authority. This legislative instrument, which is subject to the Legislative Instruments Act 2003, came into effect the day after it was registered on the Federal Register of Legislative Instruments.

Key Provisions

The primary operative sections of this legislation, under section 303DB of the Environment Protection and Biodiversity Conservation Act 1999, pertain to the establishment and amendment of a list of exempt native specimens. Specifically, section 303DC of the Act allows for the addition of certain specimens to this list, thereby exempting them from the trade control provisions that apply to regulated native specimens. This particular legislative instrument adds specimens derived from fish or invertebrates, taken in the Macquarie Island Toothfish Fishery, to the list of exempt native specimens, provided they are not from species listed under Part 13 of the Act. The inclusion of these specimens on the list is conditional on two notations: the specimen or the fish or invertebrate from which it is derived must have been taken lawfully, and the specimen is included on the list until 28 November 2010. This amendment aims to facilitate the continued export of these specimens for a period of five years, ensuring compliance with the Australian Government’s Guidelines for the ecologically sustainable management of fisheries. These guidelines establish criteria for assessing the ecological sustainability of fisheries management arrangements. The Act imposes several obligations on the parties and entities it governs. Firstly, it mandates that any specimens added to the list of exempt native specimens must meet the specified conditions, namely, they must be taken lawfully and must not belong to species listed under Part 13 of the Act. Secondly, the Act requires consultation with relevant Ministers of the Commonwealth, State, and self-governing Territory, as well as with the Australian Fisheries Management Authority, before making such amendments. This ensures that the decision to add specimens to the list is informed by comprehensive stakeholder consultation and aligns with sustainable management practices. There are no specific offences, penalties, or consequences outlined for breaches of these provisions in the explanatory statement. However, breaches of the Environment Protection and Biodiversity Conservation Act 1999 in general can lead to significant civil and criminal penalties. For instance, under section 515 of the Act, a person can be fined up to $66,000 or imprisoned for up to two years, or both, for a strict liability offence related to trade in regulated native specimens. Similarly, under section 518, a person can be fined up to $330,000 or imprisoned for up to five years, or both, for an offence involving the unlawful taking or damaging of native specimens. These penalties underscore the importance of compliance with the Act’s provisions.