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 items on the list of exempt native specimens are subject:
- Specimens that are or are derived from fish or invertebrates, taken in the Broome Prawn Managed Fishery, as defined in the Broome Prawn Management Plan 1999, made under the Western Australian Fish Resources Management Act 1994, other than specimens that belong to species listed under Part 13 of the Act;
- 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 Kimberley Prawn Managed Fishery, as defined in the Kimberley Prawn Management Plan 1993, made under the Western Australian Fish Resources Management Act 1994;
- 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 Onslow Prawn Managed Fishery, as defined in the Onslow Prawn Fishery Management Plan 1991 made under the Western Australian Fish Resources Management Act 1994; and
- 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 Nickol Bay Prawn Managed Fishery, as defined in the Nickol Bay Prawn Fishery Management Plan 1991 made under the Western Australian Fish Resources Management Act 1994.
and impose the following conditions to which the inclusion of the specimens in the list are subject:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- the specimens are included on the list until 30 April 2010.
Revoking the conditions and imposing the above conditions to which the inclusion of the specimens in the list of exempt native specimens are subject 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. 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 Western Australian Department of Fisheries as the Department has management responsibility 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/2009/22
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. The Act was introduced to address the need for a comprehensive framework to manage and protect Australia’s biodiversity and heritage, ensuring sustainable development and minimising adverse environmental impacts. This legislative instrument, F2009L02669, amends the list of exempt native specimens under Section 303DC of the EPBC Act, aiming to facilitate the continued export of certain prawn fishery specimens until 30 April 2010, while ensuring these activities comply with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. The policy objective behind this amendment is to balance ecological sustainability with the economic benefits of prawn fisheries. The instrument was enacted by the Minister for the Environment, Heritage and the Arts, following consultations with relevant stakeholders, including the Western Australian Department of Fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens in accordance with Section 303DC modifies the existing regulatory framework concerning the trade of native specimens under the Act. This instrument specifically addresses specimens derived from fish or invertebrates taken within specified prawn managed fisheries in Western Australia, namely the Broome, Kimberley, Onslow, and Nickol Bay fisheries. These fisheries are governed by management plans under the Western Australian Fish Resources Management Act 1994. The amendment exempts these specimens from trade control provisions applicable to regulated native specimens, provided they do not belong to species listed under Part 13 of the EPBC Act. The exemption conditions include the requirement that the specimens or the source fish or invertebrates were taken lawfully and are listed until 30 April 2010. This legislative amendment ensures continued export of these specimens until the specified date, aligning with the Australian Government's Guidelines for the Ecologically Sustainable Management of Fisheries. The Minister for the Environment, Heritage and the Arts undertook consultations with relevant Western Australian authorities before implementing these changes.
Key Provisions
The key operative sections of this legislative instrument are sections 303DC(3) and 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (s.3). This instrument revokes the existing conditions for the inclusion of certain specimens in the list of exempt native specimens, and imposes new conditions. Specifically, the instrument removes the conditions that were previously attached to the inclusion of specimens taken from four prawn fisheries in Western Australia – Broome, Kimberley, Onslow, and Nickol Bay – and imposes new conditions that these specimens must have been taken lawfully and that they will remain exempt until 30 April 2010.
The Act imposes several obligations on parties or entities governed by it. Firstly, any person who intends to export these specimens must ensure that the specimens were taken lawfully, as per the new conditions imposed by this instrument (s.3). Secondly, all exports of these specimens must comply with the new conditions that the specimens will remain exempt until 30 April 2010 (s.3). Thirdly, the Minister for the Environment, Heritage and the Arts must consult with relevant Commonwealth and State Ministers and other persons or organisations as appropriate before amending the list of exempt native specimens (s.303DC(3)).
Breach of the obligations and requirements set out in the Act may result in civil and/or criminal penalties. Under the EPBC Act, unauthorised trade in regulated native specimens is an offence, which may be subject to a fine of up to $375,000 for a corporation and $75,000 for an individual (s.476). Additionally, any person who is found to have contravened the conditions for the export of native specimens may be liable for compensation to the Commonwealth under section 477 of the Act. The maximum penalties for contravention of these provisions are set out in the Crimes Act 1914, which provide for fines of up to $210,000 for individuals and $1,050,000 for corporations, as well as imprisonment for up to five years for individuals and ten years for corporations. It is important to note that these penalties are in addition to any other civil or criminal penalties that may apply under other legislation.