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 on the list of exempt native specimens on 20 October 2004 is subject:
- Specimens that are, or are derived from, fish or invertebrates, other than specimens listed under Part 13 of the Act, taken in the Southern and Eastern Scalefish and Shark Fishery.
and impose the following conditions to which the inclusion of the specimens in the list is subject:
- by 23 December 2009, AFMA to implement interim management measures, which will include voluntary fishery closures, increased observer coverage in areas adjacent to Australian Sea Lion colonies and other actions designed to mitigate the impact of fishing activity on Australian Sea Lions
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- the specimens are included on the list until 19 February 2010.
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 19 February 2010.
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. 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. 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 33 days. All comments received were taken into account in the decision to include the fishery on the list of exempt native specimens.
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/2009/51
Overview
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, introduced by the Commonwealth of Australia, addresses the need to manage and protect marine biodiversity, particularly concerning the impact of commercial fishing on vulnerable species such as the Australian Sea Lion. This amendment, enacted as a legislative instrument under the Legislative Instruments Act 2003, focuses on exempting certain fish and invertebrate specimens from trade control provisions while implementing conditions to mitigate ecological impacts. The policy objective is to ensure the ecologically sustainable management of fisheries, aligning with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. This legislative action seeks to balance the economic interests of the fishing industry with the conservation needs of endangered marine species, facilitating continued export of specified specimens until 19 February 2010 while requiring interim management measures to be enacted by the Australian Fisheries Management Authority by 23 December 2009.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens in accordance with Section 303DC pertains to specimens derived from fish or invertebrates, specifically those taken in the Southern and Eastern Scalefish and Shark Fishery, excluding those listed under Part 13 of the Act. This legislative instrument applies to the trade of these specimens, ensuring they remain exempt from the trade control provisions that apply to regulated native specimens. It is applicable across Australia, given the federal nature of the EPBC Act. The primary objective is to manage the impact of fishing activities on Australian Sea Lions, with conditions that include implementing interim management measures such as voluntary fishery closures and increased observer coverage in areas adjacent to Australian Sea Lion colonies. These measures must be implemented by the Australian Fisheries Management Authority (AFMA) by 23 December 2009. Additionally, the specimens must be lawfully taken, and their inclusion on the exempt list is conditional until 19 February 2010. This legislative amendment is subject to consultation with relevant ministers and stakeholders, as mandated by the Act, and public consultation was conducted to gather feedback on the proposal.
Key Provisions
The key provisions of this legislation focus on the amendment of the List of Exempt Native Specimens under Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) (Section 303DB). This involves the revocation of certain conditions for specimens taken in the Southern and Eastern Scalefish and Shark Fishery and the imposition of new conditions. Initially, specimens derived from fish or invertebrates, excluding those listed under Part 13 of the Act, taken in this fishery were exempt from trade control provisions. The new amendment removes the conditions that were previously attached to this exemption, such as the requirement for AFMA to implement interim management measures by 23 December 2009, which included voluntary fishery closures and increased observer coverage to mitigate the impact on Australian Sea Lions. The new conditions now state that the specimens must be taken lawfully and will remain exempt until 19 February 2010. These changes are intended to allow continued export of these specimens until the specified date.
The obligations imposed by this legislation on the parties involved are primarily centred on compliance with the new conditions. Australian Fisheries Management Authority (AFMA) is tasked with implementing the interim management measures by the specified date, which include voluntary fishery closures and increased observer coverage in areas adjacent to Australian Sea Lion colonies. These measures are designed to protect the sea lions and ensure that the fishery operates within ecologically sustainable parameters. Additionally, all parties must ensure that the specimens are taken lawfully and comply with the new timeframe for exemption, which ends on 19 February 2010.
In terms of consequences for non-compliance, the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaching the new conditions. However, under the EPBC Act, non-compliance with wildlife trade regulations can result in significant penalties. Offences related to the trade of native specimens can lead to fines and imprisonment. The exact penalties depend on the nature and severity of the offence but can include substantial fines and, in severe cases, imprisonment for up to two years. It is also worth noting that non-compliance with the ecologically sustainable management guidelines could lead to additional regulatory scrutiny and potential revocation of fishery permits.