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 19 December 2013 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 New South Wales Estuary General Fishery as defined in the New South Wales Fisheries Management (Estuary General Share Management Plan) Regulation 2006 in force under the New South Wales Fisheries Management Act 1994,
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 26 September 2014.
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 26 September 2014. The only effect of this amendment is to extend this date.
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 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 consulted with the New South Wales Department of Primary Industries as the New South Wales Department of Primary Industries has management responsibilities for the fishery concerned. In addition, the proposal to amend the list of exempt native specimens was advertised on the Department of the Environment’s website and comment was invited from interested people for a period of 23 business days. No comments were received.
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.
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 a comprehensive framework to protect and manage Australia's biodiversity and environment. This Act provides for the regulation of activities that may have a significant impact on the environment, including the trade of native specimens. The 2014 amendment to the List of Exempt Native Specimens was introduced to facilitate the continued export of certain fish and invertebrate specimens derived from the New South Wales Estuary General Fishery, while ensuring compliance with the EPBC Act. This change was made in accordance with Section 303DC of the EPBC Act, which allows for the amendment of the list of exempt native specimens. The policy objective behind this amendment was to maintain the ecological sustainability of the fishery's management arrangements, as guided by the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’. The enactment of this legislative instrument was overseen by the Minister for the Environment, who consulted with relevant stakeholders, including the New South Wales Department of Primary Industries, and invited public comment on the proposal.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens in accordance with Section 303DC modifies the conditions under which certain native specimens, specifically fish and invertebrate specimens taken from the New South Wales Estuary General Fishery, are exempt from trade controls. These specimens are exempt from the regulatory provisions that apply to other native specimens, provided they were taken lawfully and are included in the list until 26 September 2014. This amendment revokes previous conditions and imposes new ones, allowing continued export of these specimens until the specified date. The changes aim to align with the Australian Government's guidelines for ecologically sustainable fisheries management. The amendment applies to entities involved in the trade of these specimens within the defined fishery and geographic boundaries of New South Wales. It does not impose any new rights or freedoms and is compatible with international human rights standards.
Key Provisions
The key operative sections of this legislation (F2014L00852) primarily concern the amendment of the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). According to Section 303DB of the EPBC Act, a list of exempt native specimens is established, and specimens included in this list are exempt from the trade control provisions that apply to regulated native specimens. This instrument amends this list by revoking the conditions that were previously imposed on the inclusion of certain fish and invertebrate specimens taken in the New South Wales Estuary General Fishery, as defined in the New South Wales Fisheries Management (Estuary General Share Management Plan) Regulation 2006, and imposing new conditions (Section 303DC). These new conditions state that the specimens, or the fish or invertebrates from which they are derived, must have been taken lawfully, and that the specimens remain on the list of exempt native specimens until 26 September 2014.
This Act imposes several obligations on the parties and entities it governs. Firstly, it requires that any specimens included in the list of exempt native specimens must be taken lawfully, as per the new conditions imposed. This means that there must be compliance with all applicable laws and regulations concerning the lawful taking of fish and invertebrates in the specified fishery. Additionally, the Act mandates that the specimens remain on the list of exempt native specimens until the specified date of 26 September 2014. This ensures that the export of these specimens is permitted until the specified date, aligning with the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’. The Minister for the Environment, in making these amendments, was required to consult with relevant stakeholders, including the New South Wales Department of Primary Industries, and to invite comments from interested parties via the Department of the Environment’s website.
In terms of consequences for breach, the legislation does not explicitly outline specific offences, penalties, or consequences for non-compliance with the imposed conditions. However, general provisions under the EPBC Act and related regulations may still apply. For instance, any unlawful taking of fish or invertebrates or any other breaches of the conditions could result in penalties under the relevant fisheries management legislation. The Act itself does not provide for maximum penalties but indicates that the instrument is compatible with human rights and freedoms as recognised in international instruments. The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments, indicating its immediate applicability.