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 Southern Squid Jig Fishery, as defined in the Southern Squid Jig Fishery Management Plan 2005, made under the Fisheries Management Act 1991.
with a notation that inclusion of the specimens in the list is subject to the following restrictions or conditions:
- The specimen was taken lawfully; and
- The specimens are included on the list until 30 April 2010.
Listing of the specimens described above on the list of exempt native specimens will allow continued export of these specimens until 30 April 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 – 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 Australian Fisheries Management Authority (AFMA) as AFMA has 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 24 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/2009/46
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly in relation to matters of national environmental significance. In 2009, the Act was amended through the legislative instrument F2009L04358 to address a specific problem regarding the trade of native specimens from the Southern Squid Jig Fishery. This amendment was introduced to exempt certain fish and invertebrate specimens from the trade control provisions, allowing their continued export under specific conditions until 30 April 2010. The decision to amend the list of exempt native specimens was made by the Delegate of the Minister for Environment, Heritage and the Arts, in consultation with the Australian Fisheries Management Authority and after inviting public comments. The policy objective was to ensure the ecological sustainability of the fishery, as per the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens instrument applies to specimens of fish or invertebrates derived from the Southern Squid Jig Fishery, excluding those belonging to species listed under Part 13 of the EPBC Act. This legislative instrument is designed to exempt certain native specimens from the trade control provisions applicable to regulated native specimens, facilitating their continued export until 30 April 2010, subject to the conditions that the specimens were taken lawfully and are included on the list until the specified date. The amendment extends to Commonwealth jurisdiction and aligns with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. The decision to include these specimens on the exempt list was preceded by consultation with relevant authorities, including the Australian Fisheries Management Authority, and public comment, as mandated by the EPBC Act. The instrument operates as a legislative instrument under the Legislative Instruments Act 2003, with its commencement occurring on the day following its registration on the Federal Register of Legislative Instruments.
Key Provisions
The key operative sections of this legislative instrument (EPBC303DC/SFS/2009/46) amend the List of Exempt Native Specimens under Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DC permits the Minister to add certain specimens to the list of exempt native specimens. This instrument includes specimens that are or are derived from fish or invertebrates, taken in the Southern Squid Jig Fishery as defined in the Southern Squid Jig Fishery Management Plan 2005, made under the Fisheries Management Act 1991. However, this exemption does not apply to specimens belonging to species listed under Part 13 of the EPBC Act. The inclusion of these specimens in the list of exempt native specimens is subject to two main conditions: the specimens must be taken lawfully, and the exemption will remain in place until 30 April 2010.
This amendment imposes several obligations and requirements on parties and entities involved in the trade of these specimens. Firstly, those taking the specimens must ensure that they are taken in accordance with the law, as stipulated in the Southern Squid Jig Fishery Management Plan 2005. This involves adhering to the management measures and regulations set out in the plan to ensure the specimens are sourced lawfully. Additionally, the exemption applies only until 30 April 2010, which means that any trade of these specimens beyond this date must comply with the trade control provisions that apply to regulated native specimens. Parties must therefore ensure they are aware of and comply with the expiry date of this exemption to avoid any non-compliance with the EPBC Act.
Failure to comply with the conditions and requirements set out in this legislative instrument may result in civil or criminal consequences. Under the EPBC Act, breaches of the trade control provisions for regulated native specimens can lead to significant penalties. For example, individuals may face fines of up to $330,000 or imprisonment for up to five years, or both, for offences related to the unlawful trade of native specimens. Corporations may face even higher fines, potentially reaching up to $1.65 million for serious offences. The precise penalties depend on the nature and severity of the breach, but the Act provides a clear framework for enforcement and sanctions to deter non-compliance and protect the ecological sustainability of the fishery.