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 in the list of exempt native specimens on 1 December 2005 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 2011.
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 2011.
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 department has management responsibilities for the fishery concerned.
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/2010/65
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive environmental protection and biodiversity conservation in Australia, providing a framework for the assessment and approval of activities that may have a significant impact on the environment. The Act was introduced by the Australian Parliament with the policy objective of ensuring the sustainable management of natural resources and the protection of the nation's biodiversity. The Act includes provisions for the establishment of a list of exempt native specimens to manage the trade of such specimens. This legislative instrument, enacted in 2010, amends the list of exempt native specimens to remove certain conditions for specimens derived from fish or invertebrates taken in the Tasmanian Commercial Dive Fishery, subject to the new conditions that these specimens must be taken lawfully and remain exempt until 15 September 2011. The change was made following consultation with relevant authorities and in accordance with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides the legislative framework for the protection of the environment and biodiversity in Australia. This Act applies to a wide range of entities, including individuals, corporations, and government bodies, across all states, territories, and Commonwealth waters. Section 303DB of the Act 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. This particular legislative instrument amends the list of exempt native specimens to address specimens taken in the Tasmanian Commercial Dive Fishery, which are exempt from trade controls until 15 September 2011, provided they were taken lawfully. The Minister for Sustainability, Environment, Water, Population and Communities must consult with relevant ministers and stakeholders before making such amendments, and in this instance, consulted with the Tasmanian Department of Primary Industries, Parks, Water and Environment due to their management responsibilities for the fishery. The changes made by this legislative instrument allow for the continued export of these specimens until the specified date, reflecting the Australian Government’s guidelines for the ecologically sustainable management of fisheries.
Key Provisions
The main sections of the legislation revolve around Section 303DB and Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB (1) establishes a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. Section 303DC (3) stipulates the procedure for amending the list of exempt native specimens, including the requirement for consultation with relevant Commonwealth ministers, state ministers, and possibly other persons or organisations. This particular legislative instrument revokes the existing conditions for the inclusion of certain specimens in the list and imposes new conditions.
The obligations and requirements imposed by this Act are twofold. Firstly, the specimens must be taken lawfully as per the Fisheries (Commercial Dive) Rules 2005 under the Tasmanian Living Marine Resources Management Act 1995. Secondly, the inclusion of these specimens in the list of exempt native specimens is now subject to the condition that they remain listed until 15 September 2011. This allows for the continued export of these specimens until the specified date, in line with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. The Minister for Sustainability, Environment, Water, Population and Communities, or their delegate, is required to consult with the Tasmanian Department of Primary Industries, Parks, Water and Environment due to its management responsibilities over the fishery in question.
Failure to comply with the provisions of this Act may lead to various legal consequences. While the Act does not explicitly state offences, penalties, or specific civil/criminal consequences, violations of the EPBC Act generally can result in substantial penalties. For instance, under Section 537 of the EPBC Act, the maximum penalty for contravening certain provisions related to the trade of native specimens can be up to 10,000 penalty units, which as of 2021 equates to approximately AUD 1.8 million for corporations and AUD 180,000 for individuals, along with potential imprisonment terms. The precise penalties would depend on the specific nature and severity of the breach.