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 20 February 2008 is subject:
- Cast bull kelp (Durvillaea potatorum), harvested from specified beaches of King Island, Tasmania by a number of licensed harvesters under the Tasmanian Living Marine Resources Management Act 1995 and processed by Kelp Industries Pty Ltd.
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 17 August 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 17 August 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 22 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.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Unique Identifying Number: EPBC303DC/SFS/2011/23.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to provide for the protection of the environment, particularly with respect to matters of national environmental significance. One of the key provisions of this Act is the establishment of a list of exempt native specimens, as per Section 303DB, which exempts certain specimens from the trade control provisions applicable to regulated native specimens. The EPBC Act Amendment of the List of Exempt Native Specimens in accordance with Section 303DC was introduced to address the specific need to allow for the continued export of cast bull kelp (Durvillaea potatorum) harvested from specified beaches of King Island, Tasmania, under certain conditions. This legislative instrument revokes the previous conditions imposed on the inclusion of these specimens in the list and imposes new conditions, ensuring that the specimens are included in the list until 17 August 2016, provided they were taken lawfully. The decision to amend the list was made in consultation with relevant authorities and stakeholders, including the Tasmanian Department of Primary Industries, Parks, Water and Environment, and with public consultation as stipulated by the Act.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, represented by the legislative instrument F2011L01658, pertains to the trade control provisions for native specimens, specifically those that are exempt from regulation. This amendment concerns the inclusion of cast bull kelp (Durvillaea potatorum) harvested from certain beaches on King Island, Tasmania, by licensed harvesters under the Tasmanian Living Marine Resources Management Act 1995 and processed by Kelp Industries Pty Ltd. These specimens are exempt from the trade control provisions applicable to regulated native specimens. The instrument revokes previous conditions associated with the inclusion of these specimens in the list of exempt native specimens, replacing them with new conditions that the specimens must be taken lawfully and that they remain exempt until 17 August 2016. The decision to amend the list was made in consultation with relevant Tasmanian authorities and with public comment considered, ensuring compliance with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. This legislative instrument applies specifically to the entities involved in the harvesting and processing of the specified kelp specimens on King Island, Tasmania, and extends to the Commonwealth jurisdiction under the EPBC Act.
Key Provisions
Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) establishes a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. This instrument amends the list by revoking the conditions previously imposed on the inclusion of Cast bull kelp (Durvillaea potatorum) harvested from specified beaches of King Island, Tasmania, and processed by Kelp Industries Pty Ltd, in the list of exempt native specimens, which was first included on 20 February 2008. The new conditions state that the specimens must have been taken lawfully and must remain in the list until 17 August 2016. These changes will facilitate continued export of these specimens until the specified date.
The Act imposes specific obligations on the parties involved in the harvesting and processing of the Cast bull kelp. Firstly, the specimens must be taken lawfully under the Tasmanian Living Marine Resources Management Act 1995. This ensures that the harvesting activities comply with the relevant state laws and regulations. Secondly, the specimens must be included in the list of exempt native specimens until 17 August 2016. This means that during this period, the specimens are exempt from the trade control provisions outlined in the EPBC Act. These obligations ensure that the ecological sustainability of the fishery is maintained while allowing for the continued export of the specimens.
Failure to comply with the conditions outlined in this instrument may result in various legal consequences. Under the EPBC Act, there are specific offences and penalties for breaches related to the trade of native specimens. While the specific penalties for the breach of the conditions in this instrument are not detailed in the explanatory statement, the general penalties for breaches under the EPBC Act can include substantial fines and potential imprisonment. The Act also provides for civil and criminal penalties for non-compliance, which may include fines and other sanctions as determined by the courts. The exact penalties will depend on the nature and severity of the breach, as well as any relevant state or territory laws.