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 instrument deletes specimens from the list of exempt native specimens that are taken in fifteen fisheries specified in Schedule 1. The instrument also includes specimens from the same fifteen fisheries in the list of exempt native specimens, with notations that inclusion of the specimens in the list are subject to restrictions or conditions that the specimen, or the fish or invertebrate from which it is derived, was taken lawfully, and that the specimens are included in the list until the dates specified in Schedule 2.
The relevant fisheries are as follows:
Western Australian Developmental Octopus Fisheries
Western Australian South Coast Trawl Fishery
Western Australian Pilbara Fish Trawl Interim Managed Fishery
Torres Strait Beche-de-mer Fishery
Torres Strait Tropical Rock Lobster Fishery
New South Wales Lobster Fishery
New South Wales Ocean Hauling Fishery
New South Wales Estuary General Fishery
New South Wales Ocean Trawl Fishery
New South Wales Estuary Prawn Trawl Fishery
New South Wales Abalone Fishery
Northern Territory Demersal Fishery
South Australian Scallop and Turbo Fisheries
South Australian Specimen Shell Fishery
South Australian Sea Urchin Fishery
Non Commonwealth Acts and disallowable instruments that are incorporated by reference in this instrument are to be incorporated as in force from time to time. All State and Territory legislation incorporated by reference in this instrument can be freely accessed on the relevant State legislation websites:
- New South Wales legislation at www.legislation.nsw.gov.au (as of May 2017)
- Northern Territory legislation at www.legislation.nt.gov.au (as of May 2017)
- South Australian legislation at www.legislation.sa.gov.au (as of May 2017)
- Western Australian legislation at www.slp.wa.gov.au (as of May 2017)
The effect of this instrument is to extend the export approval for the specimens until the dates specified in Schedule 2. These fisheries have been identified by the Department of the Environment and Energy as fisheries that may be included in a block assessment approach by jurisdiction over the coming twelve months.
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 the Environment and Energy 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 the Environment and Energy consulted with the Australian Fisheries Management Authority, the Western Australian Department of Fisheries, the New South Wales Department of Primary Industries, the Northern Territory Department of Primary Industry and Resources, and the Department of Primary Industries and Regions South Australia as the Australian Fisheries Management Authority, the Western Australian Department of Fisheries, the New South Wales Department of Primary Industries, the Northern Territory Department of Primary Industry and Resources, and the Department of Primary Industries and Regions South Australia have management responsibilities for the fisheries concerned.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT DOES NOT RAISE ANY HUMAN RIGHTS ISSUES
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive protection of the environment and biodiversity, including the regulation of trade in native specimens. This legislation, amended by F2017L00256, serves to modify the List of Exempt Native Specimens by removing certain specimens taken from specified fisheries and adding others with specific conditions. This amendment was made in accordance with Section 303DC of the EPBC Act, which provides for the establishment and modification of the list of exempt native specimens. The Minister for the Environment and Energy, as mandated by Subsection 303DC(3), consulted with relevant ministers and authorities from various states and territories, ensuring that the amendments align with the Australian Government’s guidelines for ecologically sustainable management of fisheries. The legislative instrument, which incorporates relevant state and territory legislation, commenced on the day following its registration on the Federal Register of Legislative Instruments, thereby extending export approvals for the specimens until specified dates outlined in Schedule 2.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment instrument pertains to the list of exempt native specimens, specifically modifying the list in accordance with Section 303DC. This Act applies to entities and individuals involved in the specified fisheries in Western Australia, New South Wales, Northern Territory, and South Australia, particularly focusing on the lawful taking and export of specimens derived from the listed fisheries. The amendment exempts certain specimens from the trade control provisions applicable to regulated native specimens, provided they adhere to the conditions outlined in Schedule 2. This exemption extends until specified dates, aligning with the Australian Government’s guidelines for ecologically sustainable management of fisheries. The instrument's jurisdiction encompasses the Commonwealth, with state and territory legislation incorporated by reference to ensure consistent application across jurisdictions. The instrument came into effect on the day following its registration on the Federal Register of Legislative Instruments, and no human rights issues have been identified in its implementation.
Key Provisions
The main operative sections of this legislation, specifically Section 303DC, are concerned with the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This amendment involves the deletion of certain specimens from the list of exempt native specimens that are sourced from fifteen specified fisheries. These fisheries include the Western Australian Developmental Octopus Fisheries, the Western Australian South Coast Trawl Fishery, and others as listed in the Explanatory Statement. Simultaneously, the same specimens are included in the list of exempt native specimens, subject to certain conditions and restrictions. These conditions include that the specimens must have been taken lawfully and that their inclusion in the list is valid until the dates specified in Schedule 2 of the instrument.
The obligations and requirements imposed by this Act on the parties or entities it governs primarily revolve around the lawful taking of specimens from the specified fisheries. To qualify for exemption, specimens must adhere to the legal framework governing the respective fisheries from which they are derived. This includes compliance with state and territory fisheries management laws, which are incorporated by reference into this instrument. The Act mandates that any party involved in the trade of these specimens must ensure that they have been sourced in accordance with applicable fisheries management regulations. Additionally, the Act requires consultation with relevant authorities such as the Australian Fisheries Management Authority and the respective state and territory fisheries departments before making any amendments to the list.
Breach of the conditions specified in this instrument could result in a range of civil and criminal consequences. While the Explanatory Statement does not detail specific penalties, the Environment Protection and Biodiversity Conservation Act 1999 provides for penalties for non-compliance with its provisions. Generally, offences under the EPBC Act may attract substantial fines, with penalties for individuals potentially reaching up to $222,000 and for corporations up to $1,110,000. Additionally, criminal prosecution may result in imprisonment for individuals, with terms varying based on the severity of the offence. The Act also allows for civil penalties, which can include compensation for harm caused to the environment or native species. Therefore, parties involved in the trade of these specimens must ensure strict adherence to the conditions set forth to avoid these potential consequences.