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:
- Native oyster (Ostrea angasi)
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 in accordance with the Fisheries (Shellfish) Rules 2007 in force under the Tasmanian Living Marine Resources Management Act 1995, and
- the specimens are included in the list until 5 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 5 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 Tasmanian Department of Primary Industries, Parks, Water and Environment as the Tasmanian Department of Primary Industries, Parks, Water and Environment 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 22 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 by the Australian Parliament to address the need for comprehensive environmental protection and biodiversity conservation, ensuring sustainable development. The 2012 legislative instrument amends the list of exempt native specimens under section 303DB of the EPBC Act. The amendment concerns the native oyster (Ostrea angasi) and seeks to facilitate continued exportation of these specimens until 5 May 2017. The conditions for their exemption from trade controls are updated to ensure that the specimens, or the fish or invertebrate from which they are derived, were taken in accordance with the Fisheries (Shellfish) Rules 2007 under the Tasmanian Living Marine Resources Management Act 1995. This amendment reflects the Australian Government's Guidelines for the Ecologically Sustainable Management of Fisheries and follows consultations with relevant stakeholders, including the Tasmanian Department of Primary Industries, Parks, Water and Environment.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment instrument pertains to the inclusion of native oyster (Ostrea angasi) in the list of exempt native specimens, which is subject to specific conditions aimed at maintaining the ecological sustainability of the fishery concerned. This amendment applies to the specimens derived from fisheries that comply with the Fisheries (Shellfish) Rules 2007 under the Tasmanian Living Marine Resources Management Act 1995. The amendment revokes previous conditions and imposes new ones, allowing continued export of these specimens until 5 May 2017, provided they meet the specified criteria. This legislative action extends across Commonwealth jurisdiction, in consultation with relevant state and territory authorities, including the Tasmanian Department of Primary Industries, Parks, Water and Environment. The decision-making process also involved public consultation, as advertised on the Department of Sustainability, Environment, Water, Population and Communities’ website. This instrument, which is a legislative instrument under the Legislative Instruments Act 2003, ensures that the ecological sustainability criteria outlined in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries are adhered to.
Key Provisions
The main operative sections of this legislative instrument (F2012L01000) pertain to the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) as detailed in section 303DB. Specifically, it addresses the inclusion of native oyster specimens (Ostrea angasi) in the list of exempt native specimens and the conditions associated with their exemption from trade controls (section 303DC). The legislative instrument revokes previous conditions and imposes new conditions, allowing for the continued export of these specimens until 5 May 2017, provided that they were taken in accordance with the Fisheries (Shellfish) Rules 2007 under the Tasmanian Living Marine Resources Management Act 1995.
The obligations imposed by this Act on the parties and entities it governs are primarily concerned with compliance with the new conditions for the exemption of native oyster specimens. Entities involved in the trade of these specimens must ensure that they adhere to the Fisheries (Shellfish) Rules 2007 as specified. This includes maintaining documentation that confirms the specimens were legally harvested, and ensuring that any trade activities are conducted within the timeframe set by the Act, up until 5 May 2017. Additionally, entities must ensure that any exports are in line with the environmental and sustainability guidelines outlined in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
In terms of consequences for non-compliance, the Act does not explicitly detail offences, penalties, or specific civil or criminal consequences for breaches. However, the nature of the legislation implies that any failure to comply with the conditions set for the exemption of native oyster specimens could result in actions being taken under the broader provisions of the EPBC Act. This could include administrative penalties, enforcement actions, or legal proceedings to ensure adherence to environmental protection and biodiversity conservation objectives. The potential penalties for such breaches would be in line with those prescribed under the EPBC Act, which can include significant fines and other corrective measures to address non-compliance.