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 revoke the conditions to which the inclusion of the following item on the list of exempt native specimens on 25 July 2009 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 Ocean Trap and Line Fishery, as defined in the Fishery Management Strategy for the Ocean Trap and Line Fishery made 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 in accordance with the restricted entry management regime in force under the New South Wales (NSW) Fisheries Management Act 1994;
- The specimens are included on the list until 31 March 2010;
- NSW Department Industry and Investment (DII) to continue to further analyse information from the scientific observer program in the line fishing sector and fishery-dependent logbooks on grey nurse shark and other protected species interactions, and provide a report to the Department of the Environment, Water, Heritage and the Arts (DEWHA) by 31 December 2009. Should this report identify that Ocean Trap and Line (OTLF) fishers have significant interactions with protected species, DII to commence the development of appropriate management measures to reduce these interactions; and
- From 1 February 2010, no new permits to be issued in the OTLF that allow the targeting of large shark species until a precautionary level of take and associated management measures for those species can be demonstrated and agreed to by DEWHA.
Listing of the specimens described above on the list of exempt native specimens will allow continued export of these specimens until 31 March 2010.
In determining to include the specimens on 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 the Environment, Heritage and the Arts 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 DEWHA’s website and comment was invited from interested people for a period of 24 days. All comments received were taken into account in the decision to include the fishery on 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/2009/37
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly the conservation of biodiversity, and to implement Australia’s international obligations regarding the conservation of biological diversity. This legislation addresses gaps in the regulation of the trade of native specimens, particularly those taken from fisheries, ensuring they align with ecological sustainability and biodiversity conservation objectives. The policy objective behind this amendment, as stated in the explanatory statement, is to allow the continued export of certain fish and invertebrate specimens taken under specific conditions until a certain date while ensuring these activities do not significantly impact protected species. The amendment was made by the Minister for the Environment, Heritage and the Arts, following consultations with relevant state authorities and public feedback, and is intended to facilitate sustainable fishing practices while protecting endangered species.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) Amendment pertains to the list of exempt native specimens, specifically modifying the conditions for specimens derived from fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery. This amendment exempts these specimens from trade control provisions applicable to regulated native specimens, provided they do not belong to species listed under Part 13 of the EPBC Act. The exemption applies to specimens lawfully taken under the restricted entry management regime in force under the New South Wales Fisheries Management Act 1994, and it is subject to certain conditions including a requirement for the New South Wales Department of Industry and Investment to analyse interactions with protected species and report findings to the Department of the Environment, Water, Heritage and the Arts by 31 December 2009. If significant interactions are identified, measures to mitigate these impacts must be developed. Furthermore, from 1 February 2010, no new permits allowing the targeting of large shark species will be issued until a precautionary level of take and associated management measures are demonstrated and agreed upon by the Department of the Environment, Water, Heritage and the Arts. This exemption is in effect until 31 March 2010, allowing continued export of these specimens within this timeframe.
Key Provisions
The primary sections of the legislative instrument (F2009L04372) relate to the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 303DB, which deals with the establishment of a list of exempt native specimens, is being modified to remove conditions previously applied to certain specimens. These specimens, which are or are derived from fish or invertebrates, were initially exempt from trade control provisions on the condition that they were taken lawfully within the New South Wales Ocean Trap and Line Fishery, excluding those derived from species listed under Part 13 of the EPBC Act. The changes revoke these conditions and impose new ones. Firstly, the specimens must still be taken lawfully in accordance with the restricted entry management regime under the New South Wales Fisheries Management Act 1994. Secondly, these specimens will remain on the exempt list until 31 March 2010. The New South Wales Department of Industry and Investment (DII) is tasked with continuing to analyse scientific observer program data and fishery-dependent logbooks, focusing on interactions with grey nurse sharks and other protected species. They must report their findings to the Department of the Environment, Water, Heritage and the Arts (DEWHA) by 31 December 2009. If significant interactions with protected species are identified, DII must develop appropriate management measures to mitigate these interactions. Lastly, from 1 February 2010, no new permits will be issued in the OTLF that allow the targeting of large shark species until a precautionary level of take and associated management measures for those species can be demonstrated and agreed upon by DEWHA.
This legislative instrument imposes several obligations on the relevant parties and entities. The New South Wales Department of Industry and Investment must continue its analysis of scientific data and fishery-dependent logbooks, with a focus on grey nurse sharks and other protected species interactions. This analysis is critical for informing management decisions and ensuring compliance with ecological sustainability criteria. Additionally, DEWHA is responsible for reviewing the report submitted by DII and taking necessary action if significant interactions are identified. Furthermore, DEWHA must agree to any precautionary levels of take and associated management measures for large shark species before new permits are issued from 1 February 2010. These obligations underscore the collaborative approach required to manage fisheries sustainably while protecting biodiversity.
The legislative instrument also outlines potential consequences for non-compliance with the amended provisions. While specific offences, penalties, or civil and criminal consequences are not detailed in the explanatory statement, breaches of the EPBC Act generally may result in significant penalties. For instance, offences under the EPBC Act can incur fines of up to $1.1 million for individuals and $5.5 million for corporations, as per the maximum penalties stipulated in the Act. Additionally, unauthorised activities that contravene the Act may be subject to enforcement actions, including injunctions and the recovery of costs associated with remediation efforts. These potential penalties underscore the seriousness of non-compliance and the importance of adhering to the conditions and obligations set forth in the legislation.