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 in the list of exempt native specimens on 26 May 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 South Australia Lakes and Coorong Fishery, as defined in the Fisheries Management (Lakes and Coorong Fishery) Regulations 2006 and the Fisheries Management (General) Regulations 2007 in force under the Fisheries Management Act 2007 (South Australia),
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 25 May 2011.
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 25 May 2011.
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. In this instance, the Delegate of the Minister for Sustainability, Environment, Water, Population and Communities consulted with the South Australian Department of Primary Industries and Resources as the department has management responsibilities for the fishery concerned.
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/2010/64
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This Act addresses the gap in biodiversity conservation by regulating activities that may have a significant impact on the environment. In line with the policy objective of promoting ecologically sustainable development, the Act establishes a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. The legislative instrument in question, F2010L03036, amends the list of exempt native specimens according to Section 303DC of the EPBC Act. It was enacted by the Delegate of the Minister for Sustainability, Environment, Water, Population and Communities, who consulted with the South Australian Department of Primary Industries and Resources prior to making the amendments. The policy objective of this amendment is to allow continued export of certain specimens until 25 May 2011, while ensuring they were taken lawfully and are not part of species listed under Part 13 of the EPBC Act.
Scope and Application
The F2010L03036 legislation amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by modifying the List of Exempt Native Specimens in accordance with Section 303DC. This amendment concerns specimens that are or are derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, taken in the South Australia Lakes and Coorong Fishery. These specimens, subject to the terms of the Fisheries Management (Lakes and Coorong Fishery) Regulations 2006 and the Fisheries Management (General) Regulations 2007, are now exempt from the trade control provisions applicable to regulated native specimens. The exemption is contingent on the specimens being taken lawfully and will remain in effect until 25 May 2011. 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 provide criteria for assessing the ecological sustainability of relevant fisheries management arrangements. The Minister for Sustainability, Environment, Water, Population and Communities consulted with the South Australian Department of Primary Industries and Resources, which has management responsibilities for the fishery, before making this amendment.
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 allows for the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. Section 303DC provides the process for amending this list, including the requirement for the Minister for Sustainability, Environment, Water, Population and Communities to consult with relevant Commonwealth and state ministers, as well as other appropriate persons and organisations. This particular legislative instrument revokes the previous conditions for the inclusion of certain fish and invertebrate specimens from the South Australia Lakes and Coorong Fishery in the list of exempt native specimens and imposes new conditions (Section 303DC(3)).
Under this Act, any person or entity involved in the trade of the specified fish and invertebrate specimens from the South Australia Lakes and Coorong Fishery is required to ensure that the specimens were taken lawfully and are included in the list of exempt native specimens until 25 May 2011. This obligation extends to all parties involved in the export or trade of these specimens, including traders, exporters, and relevant state authorities responsible for managing the fishery. The Act requires compliance with the new conditions, particularly the requirement that specimens were taken lawfully and remain exempt until the specified date.
Failure to comply with the provisions of the EPBC Act and this legislative instrument may result in civil or criminal consequences. The Act does not specify particular offences or penalties in this instance, but general provisions of the EPBC Act may apply. For example, unauthorised trade in native specimens could result in fines and/or imprisonment under the Act. The exact penalties would depend on the nature and severity of the breach, but could include substantial fines for individuals and corporations, as well as potential imprisonment for serious or repeated violations.