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 27 February 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 Trawl Fishery, as defined in the Fishery Management Strategy for the Ocean Trawl 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, and
- the specimens are included in the list until 27 September 2013.
The only effect of this amendment is to extend this date. 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 27 September 2013.
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 New South Wales Department of Primary Industries as the New South Wales Department of Primary Industries has management responsibility for the fishery concerned.
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 Parliament of Australia to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This Act addresses the problem of ensuring that native species and their habitats are protected from the adverse impacts of human activities. The EPBC Act Amendment of the List of Exempt Native Specimens, introduced through legislative instrument F2013L00554, aims to modify the conditions governing the exemption of certain fish and invertebrate specimens from the trade control provisions, allowing continued export under specific conditions until 27 September 2013. This legislative change was made in consultation with relevant stakeholders, including the New South Wales Department of Primary Industries, to ensure that the ecological sustainability criteria outlined in the Australian Government’s guidelines are adhered to. The amendment does not engage any of the rights or freedoms protected under Australian law and is compatible with international human rights instruments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, as outlined in the Explanatory Statement, pertains specifically to specimens derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, that are taken within the New South Wales Ocean Trawl Fishery as defined in the Fishery Management Strategy for the Ocean Trawl Fishery under the New South Wales Fisheries Management Act 1994. This legislative instrument revises the conditions under which these specimens are exempt from the trade control provisions applicable to regulated native specimens, effectively extending their exemption until 27 September 2013. The instrument also mandates that the specimens must be taken lawfully and be included in the list until the specified date. The decision to include these specimens in the list of exempt native specimens was informed by the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition,’ which provides criteria for assessing the ecological sustainability of the fishery's management arrangements. This legislative instrument operates under the Commonwealth jurisdiction and requires consultation with relevant ministers and stakeholders as stipulated by the EPBC Act.
Key Provisions
The main operative sections of this legislation are Sections 303DB and 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB establishes a list of exempt native specimens that are not subject to the trade control provisions applicable to regulated native specimens. Section 303DC allows for the amendment of this list, including the addition or removal of conditions that govern the inclusion of certain specimens. In this case, the legislative instrument amends the conditions under which specimens derived from fish or invertebrates, excluding those from species listed under Part 13 of the EPBC Act, are included in the list of exempt native specimens.
The Act imposes specific obligations on the parties involved in the trade of these specimens. Firstly, the specimens must be taken lawfully, meaning they must comply with all relevant fishing regulations and permissions. Secondly, these specimens are included in the list of exempt native specimens until 27 September 2013, as stipulated by the amendment. This means that during this period, the trade of these specimens is permitted without the usual restrictions that apply to regulated native specimens.
There are no explicit offences or penalties detailed in this legislative instrument for breach of the conditions outlined. However, it is implied that failure to comply with the lawful taking requirement or other relevant fishing regulations could result in penalties under the New South Wales Fisheries Management Act 1994 or other applicable legislation. The maximum penalties for breaches of these regulations could vary, but typically include fines and potential imprisonment for more severe violations.
The amendment to the list of exempt native specimens is intended to facilitate continued export of these specimens until the specified date. This aligns with the Australian Government's guidelines for the ecologically sustainable management of fisheries, which were considered in the decision to include these specimens in the list. The Minister for Sustainability, Environment, Water, Population and Communities was required to consult with relevant parties, including the New South Wales Department of Primary Industries, before making this amendment. The instrument is a legislative instrument under the Legislative Instruments Act 2003 and is compatible with human rights as recognised in international instruments.