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 in 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 in the list of exempt native specimens:
- 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 Ocean Trap and Line Fishery, as defined in the New South Wales Fisheries Management (Ocean Trap and Line Share Management) Regulation 2006 in force under the New South Wales Fisheries Management Act 1994.
with a notation that inclusion of the specimens in the list is subject to the following restrictions or conditions:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- the specimens are included in the list until 16 December 2010.
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 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. 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 25 business days. Industry and Investment New South Wales was also consulted. All comments received were taken into account in the decision to include the fishery in the list of exempt native specimens.
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.
Unique Identifying Number: EPBC303DC/SFS/2010/53
Overview
The Environment Protection and Biodiversity Conservation Act 1999, enacted by the Commonwealth Parliament, was designed to provide a framework for the protection of the environment and biodiversity, including the regulation of activities that have a significant impact on the environment. A notable gap addressed by this Act is the need for a structured approach to managing the trade and conservation of native species, including fish and invertebrates. In line with this, the 2010 legislative instrument amends the List of Exempt Native Specimens under Section 303DC of the Act to include certain specimens derived from fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery, provided they meet specific conditions such as lawful capture and a temporary exemption until 16 December 2010. This amendment follows consultations with relevant ministers, industry representatives, and the public, and aligns with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, aiming to ensure the sustainability of fisheries management arrangements.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens under Section 303DC pertains to specimens of fish or invertebrates derived from the New South Wales Ocean Trap and Line Fishery, excluding those belonging to species listed under Part 13 of the EPBC Act. This amendment applies to entities and persons involved in the fishery, ensuring that trade of these specific specimens is exempt from the trade control provisions applicable to regulated native specimens, provided they were taken lawfully and remain listed until 16 December 2010. The instrument reflects the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, underscoring the ecological sustainability criteria of the fisheries management arrangements. This legislative amendment extends across the Commonwealth jurisdiction and aligns with the consultation process stipulated by the EPBC Act, which involves appropriate ministers and stakeholders from federal, state, and territory levels. The decision to include these specimens in the list was made following public consultation and feedback from relevant authorities, including Industry and Investment New South Wales.
Key Provisions
The key operative sections of this legislation, specifically Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), provide for the inclusion of certain specimens in the list of exempt native specimens (Section 303DB). These specimens, which are or are derived from fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery, are exempt from the trade control provisions applicable to regulated native specimens, provided they were taken lawfully and are included in the list until 16 December 2010 (Section 303DC(1)). This inclusion is subject to the guidelines set out in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition, which were considered in determining the ecological sustainability of the relevant fisheries management arrangements (Section 303DC(2)).
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, it mandates that the Minister for Sustainability, Environment, Water, Population and Communities must consult with relevant Commonwealth and state/territory ministers before amending the list of exempt native specimens (Section 303DC(3)). Additionally, the minister may consult with other persons and organisations deemed appropriate. This consultation process ensures that the decision-making process is inclusive and considers various perspectives. Furthermore, the proposal to amend the list was advertised on the Department of Sustainability, Environment, Water, Population and Communities’ website, inviting comments from interested individuals and organisations for a period of 25 business days. Industry and Investment New South Wales was also consulted, and all comments received were taken into account in the decision-making process (Section 303DC(3)).
In terms of consequences for breach, the Act does not explicitly state any specific offences, penalties, or civil/criminal consequences for breaching the provisions related to the exemption of native specimens. However, the overarching framework of the EPBC Act includes provisions for enforcement and compliance measures. For example, under Section 528 of the EPBC Act, unauthorised trade in native specimens can lead to civil penalties of up to $330,000 for individuals and $1.65 million for corporations, along with potential criminal penalties. Additionally, the Act includes general provisions for enforcement actions, including fines and imprisonment, as outlined in the Criminal Code Act 1995. The inclusion of specimens in the list of exempt native specimens is intended to align with ecological sustainability criteria and ensure compliance with relevant fisheries management arrangements.