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 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 Southern and Eastern Scalefish and Shark Fishery, as defined in the management regime for the fishery made under the Fisheries Management Act 1991 and the Fisheries Management Regulations 1992
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;
- the specimens are included in the list until 28 February 2013;
- the Australian Fisheries Management Authority will inform the Department of Sustainability, Environment, Water, Population and Communities of any intended amendments to the fishery's management arrangements that may affect the assessment of the fishery against the criteria on which the EPBC Act decisions are based;
- the Australian Fisheries Management Authority, in consultation with marine mammal experts, will continue to monitor and review the adequacy of management measures towards the objective of avoiding mortality of, or injuries to, Australian Sea Lions so as to enable the recovery of Australian Sea Lion populations, including all sub-populations; and
- the Australian Fisheries Management Authority, in consultation with relevant experts, will continue to monitor and review the adequacy of management measures towards the objective of stopping the decline of, and supporting the recovery of Harrisson’s dogfish and southern dogfish.
Listing of the specimens described above in the list of exempt native specimens will allow continued export of these specimens until 28 February 2013.
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 Minister for Sustainability, Environment, Water, Population and Communities consulted with the Australian Fisheries Management Authority as the Australian Fisheries Management Authority has management responsibilities for the fishery concerned. In addition, the proposal to amend the list of exempt native specimens was advertised on the Department of Sustainability, Environment, Water, Population and Communities’ website and comment was invited from interested people for a period of 41 business days. All comments received were taken into account in the decision to include specimens derived from the fishery in the list of exempt native specimens.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This legislative instrument does not engage any of the applicable rights or freedoms. This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The instrument commenced on 30 July 2012.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to address the need for comprehensive protection of the nation's biodiversity and environmental heritage. This legislation provides a framework for the protection of the environment, particularly in relation to matters of national environmental significance. In 2012, an amendment to the EPBC Act was introduced to address specific concerns regarding the sustainability of fisheries management and the protection of certain marine species. This amendment involved the inclusion of specimens derived from the Southern and Eastern Scalefish and Shark Fishery into the list of exempt native specimens under Section 303DB of the EPBC Act, subject to certain conditions and restrictions designed to ensure the sustainability of the fishery and the protection of endangered species such as the Australian Sea Lion and dogfish species. The policy objective of this amendment was to balance the economic interests of the fishing industry with the ecological sustainability and conservation of marine biodiversity.
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 that are or are derived from fish or invertebrates, excluding those that belong to species listed under Part 13 of the EPBC Act, which have been taken in the Southern and Eastern Scalefish and Shark Fishery as defined under the Fisheries Management Act 1991 and the Fisheries Management Regulations 1992. This legislative amendment aims to exempt these specimens from the trade control provisions that apply to regulated native specimens, subject to specific conditions and restrictions. The exemption is applicable until 28 February 2013 and includes requirements for lawful taking, ongoing monitoring and review of management measures by the Australian Fisheries Management Authority to ensure the protection of Australian Sea Lions and the recovery of Harrisson’s dogfish and southern dogfish populations. The amendment process involved consultation with the Australian Fisheries Management Authority and public comments, ensuring compliance with both the EPBC Act and international human rights standards. This legislative instrument is a part of the broader framework for ecologically sustainable management of fisheries and commenced on 30 July 2012.
Key Provisions
The main sections of this legislation, specifically Section 303DB and Subsection 303DC(3) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), establish the framework for exempting certain native specimens from trade controls. Section 303DB allows for the creation of a list of exempt native specimens, which are not subject to the trade control provisions that apply to regulated native specimens. Subsection 303DC(3) outlines the consultation process required before amending the list, including consultation with relevant ministers and other stakeholders. This particular legislative instrument amends the list to include specimens derived from fish or invertebrates taken in the Southern and Eastern Scalefish and Shark Fishery, subject to specific conditions and restrictions.
The Act imposes several obligations and requirements on the parties and entities it governs. Firstly, the Australian Fisheries Management Authority must ensure that the specimens included in the list were taken lawfully. Secondly, the inclusion of these specimens in the list is time-bound, expiring on 28 February 2013. Thirdly, the Authority is required to inform the Department of Sustainability, Environment, Water, Population and Communities of any intended amendments to the fishery's management arrangements that may affect the ecological sustainability assessment. Additionally, the Authority, in consultation with marine mammal experts, must monitor and review management measures to avoid mortality or injury to Australian Sea Lions and support their population recovery. Similarly, the Authority, in consultation with relevant experts, must assess the adequacy of measures to stop the decline of, and support the recovery of, Harrison’s dogfish and southern dogfish.
Failure to comply with the provisions of this Act may result in various offences and penalties. Although the specific penalties are not detailed within this legislative instrument, breaches of the EPBC Act generally can lead to significant civil and criminal consequences. Civil penalties can include fines, with the maximum penalty varying depending on the nature and severity of the breach. Criminal penalties can include imprisonment, with the maximum penalty also dependent on the specifics of the offence. It is essential for parties and entities governed by this Act to adhere to its provisions to avoid these potential consequences.