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 on 24 November 2010 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 Act, taken in the Tasmanian Commercial Dive Fishery, as defined in the Fisheries (Commercial Dive) Rules 2005, under the Tasmanian Living Marine Resources Management Act 1995,
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 15 September 2016.
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 15 September 2016.
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 Delegate of the Minister for Sustainability, Environment, Water, Population and Communities consulted with the Tasmanian Department of Primary Industries, Parks, Water and Environment as the Tasmanian Department of Primary Industries, Parks, Water and Environment 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 24 business days. No comments were received.
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/2011/28
Overview
The Environment Protection and Biodiversity Conservation Act 1999, enacted by the Parliament of Australia, was introduced to address the protection of the nation's biodiversity and environmental heritage. This legislation provides a framework for the regulation of activities that may have significant impacts on the environment, including the regulation of the trade in native specimens. The Act establishes a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. In 2011, an amendment was made to the list of exempt native specimens, revoking certain conditions and imposing new ones to facilitate continued export of specimens derived from fish or invertebrates taken in the Tasmanian Commercial Dive Fishery, until 15 September 2016. This amendment was made in consultation with relevant authorities and following an invitation for public comment.
The policy objective of this amendment is to balance the need for continued export of these specimens with the protection of biodiversity and the implementation of ecologically sustainable management practices. This is in line with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, which were considered in determining the inclusion of these specimens in the list of exempt native specimens. This legislative instrument was registered under the Legislative Instruments Act 2003 and came into effect on the day following its registration on the Federal Register of Legislative Instruments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) sets out provisions for the protection of the environment, including the regulation of trade in native specimens. This legislation applies to any person or entity involved in the trade of native specimens, including those derived from fish or invertebrates, unless they are listed under Part 13 of the Act. The Act operates on a Commonwealth level, meaning it has jurisdiction across Australia. However, the specific amendment concerning the list of exempt native specimens pertains to those taken in the Tasmanian Commercial Dive Fishery, as defined under the Tasmanian Living Marine Resources Management Act 1995. The amendment revokes existing conditions and imposes new ones, ensuring that specimens taken lawfully can be exported until 15 September 2016, provided they meet the criteria outlined in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. This legislative instrument was developed following consultation with relevant Tasmanian authorities and public notice, ensuring transparency and stakeholder engagement in the process.
Key Provisions
The key provision of the legislation (F2011L01891) concerns the amendment of the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 303DC allows for the establishment of a list of exempt native specimens, which are not subject to the trade control provisions applicable to regulated native specimens (section 303DB). This legislative instrument revokes the conditions previously imposed on specimens derived from fish or invertebrates in the Tasmanian Commercial Dive Fishery and imposes new conditions on these specimens. The new conditions require that the specimens or the fish or invertebrate from which they are derived must have been taken lawfully and that they remain on the list of exempt native specimens until 15 September 2016.
The Act imposes obligations on parties involved with these specimens. Firstly, the specimens must be derived from lawful fishing activities within the Tasmanian Commercial Dive Fishery. This requirement ensures that the ecological sustainability of the fishery is maintained and that the trade in these specimens does not contribute to illegal fishing practices. Secondly, the specimens must be included on the list of exempt native specimens until 15 September 2016, which allows for their continued exportation under the specified conditions. These obligations are designed to balance the need for economic activity with the imperative of environmental protection.
In terms of consequences for non-compliance, the legislation does not explicitly state penalties for breaches of its provisions. However, under the broader EPBC Act, unauthorised actions involving native specimens can lead to significant penalties. For instance, section 508 of the EPBC Act provides for substantial financial penalties, including fines up to $666,000 for individuals and $3.33 million for corporations, for offences involving the unauthorised taking or trade of native specimens. Additionally, breaches may result in civil actions for damages and criminal charges, which could lead to imprisonment. These potential consequences underscore the importance of adhering to the conditions set forth by the legislation.