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 include the following specimens in the list of exempt native specimens:
- 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 Sardine Fishery, as defined in the Management Plan for South Australian Pilchard Fishery 2005, in force under the South Australian Fisheries Management Act 2007, the Fisheries Management (General) Regulations 2007, and the Fisheries Management (Marine Scalefish Fisheries) Regulations 2006.
with a notation that inclusion of the specimens in the list is subject to the following restrictions or conditions:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- The specimens are included on the list until 27 November 2009.
Listing of the specimens described above on the list of exempt native specimens will allow continued export of these specimens until 27 November 2009.
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. In this instance, the Delegate of the Minister for Environment, Heritage and the Arts consulted with the Department of Primary Industry and Resources South Australia as the Department have management responsibilities for the fishery concerned. In addition, 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 25 days. No comments were received.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
For the purposes of section 12(1) of the Legislative Instruments Act 2003, the specified day for the purposes of the commencement of this instrument is 15 October 2009.
Unique Identifying Number:
EPBC303DC/SFS/2009/35
Overview
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to address the need for comprehensive environmental protection and biodiversity conservation in Australia. The Act provides a framework for the protection of the environment and biodiversity, including the regulation of trade in native specimens. The Act was introduced by the Commonwealth Parliament to address gaps in existing legislation and to ensure a coordinated approach to environmental protection across Australia. One of the key provisions of the Act is the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. This legislative instrument, F2009L03952, amends the list of exempt native specimens under Section 303DC of the Act to include specimens taken in the South Australian Sardine Fishery, subject to certain conditions and restrictions. This amendment was made to allow for the continued export of these specimens until 27 November 2009, while also taking into account the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment (Exempt Native Specimens) Instrument 2009 amends the List of Exempt Native Specimens under Section 303DC of the Act. This amendment pertains specifically to specimens derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, taken within the South Australian Sardine Fishery as defined by the relevant management plans and regulations. These specimens are exempt from the trade control provisions applicable to regulated native specimens and are included in the list of exempt native specimens until 27 November 2009. The inclusion is contingent on the specimens being taken lawfully, aligning with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. This legislative instrument is subject to consultation requirements stipulated in the EPBC Act, ensuring appropriate consideration of relevant stakeholders before implementation. The specified commencement date for this instrument is 15 October 2009.
Key Provisions
The main operative sections of this legislation are Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and the amendment made to the List of Exempt Native Specimens. Section 303DC of the EPBC Act (subsection 303DC(3)) provides the legal framework for the Minister for the Environment, Heritage and the Arts to amend the list of exempt native specimens. This particular amendment adds specimens taken from the South Australian Sardine Fishery to the list of exempt native specimens (subsection 303DB), subject to certain conditions. The specimens included are those from fish or invertebrates, excluding species listed under Part 13 of the EPBC Act, and are defined in the Management Plan for South Australian Pilchard Fishery 2005, under the South Australian Fisheries Management Act 2007, the Fisheries Management (General) Regulations 2007, and the Fisheries Management (Marine Scalefish Fisheries) Regulations 2006. The inclusion is valid until 27 November 2009, provided the specimens were taken lawfully.
The Act imposes several obligations and requirements on the parties or entities it governs. Firstly, the Minister for the Environment, Heritage and the Arts must consult with relevant Commonwealth Ministers, State Ministers, and potentially other persons and organisations deemed appropriate before making amendments to the list of exempt native specimens. In this case, the Delegate of the Minister consulted with the Department of Primary Industry and Resources South Australia due to their management responsibilities for the fishery. Additionally, the proposal to amend the list was advertised on the Department of the Environment, Water, Heritage and the Arts (DEWHA) website, inviting comments from interested parties for 25 days. The decision to list the specimens was made after considering the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, 2nd Edition, which provide criteria for assessing the ecological sustainability of fisheries management arrangements.
The legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches within the text provided. However, any breach of the EPBC Act or failure to comply with the listed conditions for exempt native specimens could result in legal action under the broader provisions of the Act. The EPBC Act itself contains various sections that impose penalties for illegal activities, including fines and imprisonment, depending on the severity and nature of the breach. The specific penalties for any violations related to the exempt native specimens would be determined in accordance with the relevant sections of the Act, taking into account the circumstances of the breach.