EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act, 1999
Amendment of the List of Exempt Native Specimens in accordance with Section 303DC
(Issued under the Authority of the Minister for the Environment and Water Resources)
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 on the list are exempt from the trade control provisions that apply to regulated native specimens.
The effect of this instrument is to add the following specimen to the list of exempt native specimens and to make those inclusions subject to the notations specified below:
- Native oyster (Ostrea angasi)
The inclusion of the specimen in the list is subject to the following notations:
- 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 specimen is included on the list until 12 May 2012.
Listing of the specimen described above on the list of exempt native specimens will allow continued export of the specimen for the next five years.
In determining to include the above specimen in the list of exempt native specimens regard was had to the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. Those Guidelines establish the criteria for assessment of the ecological sustainability of the relevant fisheries management arrangements.
In accordance with section 303DC of the EPBC Act, consultation was undertaken with the following Ministers of the Commonwealth and of each State and self-governing Territory: the Hon David Llewellyn MHA, Minister for Primary Industries and Water.
Consultation was also undertaken in accordance with section 303DC(3)(c) of the EPBC Act. This extended to the Tasmanian Department of Primary Industries and Water.
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/2007/05
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive environmental protection and biodiversity conservation across Australia. This Act provides a framework for the protection of the environment and biodiversity, including controls over the trade of native specimens. Under Section 303DB, the Act establishes a list of exempt native specimens, which are exempt from the trade control provisions applicable to regulated native specimens. The purpose of this legislative instrument, F2007L01329, is to amend the list of exempt native specimens by adding the native oyster (Ostrea angasi) subject to specific conditions. The inclusion of the native oyster in the list is conditional upon it being taken in accordance with the Fisheries (Shellfish) Rules 2007 under the Tasmanian Living Marine Resources Management Act 1995, and it remains on the list until 12 May 2012. This amendment facilitates the continued export of native oyster specimens for a period of five years. The decision to include the native oyster in the list was influenced by the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. Consultations were conducted with relevant Ministers and the Tasmanian Department of Primary Industries and Water as required by the EPBC Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, as amended by this legislative instrument, pertains to the regulation of native specimens, specifically incorporating the native oyster (Ostrea angasi) into the list of exempt native specimens. This amendment applies to individuals or entities involved in the trade of native specimens, particularly those operating within the fisheries sector, and it is subject to the stipulations outlined in the Fisheries (Shellfish) Rules 2007 under the Tasmanian Living Marine Resources Management Act 1995. This inclusion is effective until 12 May 2012, allowing continued export of the specified oyster species during this period. The geographic reach of this legislation is national, with the amendment applying across Australia and potentially impacting all states and territories. However, the specific consultation and implementation noted in the explanatory statement indicate a focused application, particularly involving the Tasmanian Department of Primary Industries and Water. The instrument itself is a legislative tool under the Legislative Instruments Act 2003 and came into effect on the day following its registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of this legislation pertain to the amendment of the List of Exempt Native Specimens under Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (s. 1). This amendment adds the native oyster (Ostrea angasi) to the list of specimens that are exempt from the trade control provisions that apply to regulated native specimens (s. 2). This inclusion is contingent upon two specific notations: firstly, that the specimen or the fish or invertebrate from which it is derived must have been taken in accordance with the Fisheries (Shellfish) Rules 2007 in force under the Tasmanian Living Marine Resources Management Act 1995 (s. 3); and secondly, that the specimen is included on the list until 12 May 2012 (s. 4). This legislative instrument is intended to allow continued export of the native oyster for the next five years, with this decision being informed by the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
The obligations and requirements imposed by this Act on the parties and entities it governs are primarily concerned with the sustainable management and legal acquisition of native oyster specimens for trade purposes. Any person or entity involved in the trade of native oysters must ensure that the specimens have been taken in accordance with the prescribed Fisheries (Shellfish) Rules 2007 (s. 3). This means that there is a requirement to comply with the specific rules governing the taking of shellfish under Tasmanian law, ensuring that the trade is both lawful and sustainable. The Act also imposes a temporal limitation on the exemption, with the native oyster being included on the list of exempt specimens only until 12 May 2012 (s. 4). This temporal limitation ensures that the exemption is temporary and subject to review, aligning with the precautionary principle of environmental management.
The Act does not explicitly outline specific offences, penalties, or consequences for breaches of its provisions. However, any breach of the Fisheries (Shellfish) Rules 2007, which are integral to the compliance requirements of this legislation, could result in civil or criminal penalties under the Tasmanian Living Marine Resources Management Act 1995. Such penalties could include fines and other sanctions, the specifics of which would be governed by the relevant state legislation. Additionally, failure to comply with the terms of the exemption as specified by this Act could result in the specimens being subject to the trade control provisions of the EPBC Act, thereby affecting the legality and sustainability of the trade.