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 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 Australian Lakes and Coorong Fishery, as defined in the Fisheries Management (Lakes and Coorong Fishery) Regulations 2009 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 3 November 2017.
Non Commonwealth Acts and disallowable instruments that are incorporated by reference in this instrument are to be incorporated as in force from time to time. The South Australian legislation incorporated by reference in this instrument can be freely accessed at www.legislation.sa.gov.au (as of August 2017).
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 3 November 2017. The only effect of this amendment is to extend this date.
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 the Environment and Energy 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 the Environment and Energy consulted with Primary Industries and Regions South Australia as Primary Industries and Regions South Australia has management responsibilities for the fishery concerned.
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
The instrument commenced on the day after it was registered on the Federal Register of Legislation.
STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT DOES NOT RAISE ANY HUMAN RIGHTS ISSUES
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. The Act aims to ensure that the Commonwealth's environmental responsibilities are effectively discharged, including through the regulation of activities that may impact the environment. The legislative instrument F2017L00990 amends the List of Exempt Native Specimens under section 303DC of the EPBC Act. This amendment was introduced to address the need for continued export of certain fish and invertebrate specimens from the South Australian Lakes and Coorong Fishery until 3 November 2017, while ensuring compliance with the EPBC Act's trade control provisions. The policy objective is to facilitate lawful trade while maintaining ecological sustainability, as guided by the Australian Government's 'Guidelines for the Ecologically Sustainable Management of Fisheries'. The instrument was developed following appropriate consultation with relevant stakeholders, including Primary Industries and Regions South Australia.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, represented by the legislative instrument F2017L00990, primarily applies to specimens of fish or invertebrates taken in the South Australian Lakes and Coorong Fishery, excluding those species listed under Part 13 of the EPBC Act. This amendment exempts these specimens from the trade control provisions applicable to regulated native specimens, contingent upon the specimens being taken lawfully and being included in the list until 3 November 2017. The jurisdictional reach of this legislation is national, as it amends a Commonwealth Act, thereby affecting entities and individuals involved in the trade of these specimens across Australia. The instrument revokes previous conditions that were subject to specific dates and imposes new conditions to extend the exemption period. It incorporates relevant South Australian fisheries legislation by reference, which can be accessed via the South Australian government’s legislative website. The amendment ensures continued export of these specimens until the specified date, facilitating compliance with the Australian Government’s guidelines for ecologically sustainable management of fisheries.
Key Provisions
The primary operative sections of this legislative instrument are Sections 303DC and 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB establishes a list of exempt native specimens, which are exempt from trade control provisions that apply to regulated native specimens. Section 303DC allows for the amendment of this list. In this case, the instrument revokes conditions on certain fish and invertebrate specimens taken in the South Australian Lakes and Coorong Fishery and imposes new conditions that these specimens must be taken lawfully and remain exempt until 3 November 2017.
The Act imposes several obligations on parties involved in the trade of these specimens. Firstly, any specimens included in the list of exempt native specimens must be taken lawfully, meaning they must comply with the relevant South Australian fisheries laws. Secondly, the specimens must be sourced from the defined fishery areas and must not belong to species listed under Part 13 of the EPBC Act. These obligations ensure that the trade of these specimens is sustainable and does not negatively impact protected species.
There are no specific offences, penalties, or civil/criminal consequences outlined for breach of the conditions imposed by this instrument. However, any breach of the conditions would likely be treated under the general provisions of the EPBC Act, which could result in penalties for unauthorised activities involving regulated specimens. Under the EPBC Act, unauthorised actions in relation to the trade of native specimens can result in substantial fines and, in some cases, imprisonment. The maximum penalties can vary depending on the severity of the breach, with fines reaching up to $222,000 for individuals and $1,110,000 for corporations, along with potential imprisonment terms. The Act also allows for civil penalties, which can be significant and are intended to deter non-compliance.