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 30 November 2005 is subject:
- specimens that are or are derived from fish or invertebrates, other than specimens that belong to a species listed under Part 13 of the Act, taken in the Torres Strait Finfish Fishery
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 31 October 2013.
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 31 October 2013. The only effect of this amendment is to extend this date.
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 fishery’s 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 Australian Fisheries Management Authority as the Australian Fisheries Management Authority 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.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendment of List of Exempt Native Specimens
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
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 30 November 2005 is subject:
- specimens that are or are derived from fish or invertebrates, other than specimens that belong to a species listed under Part 13 of the Act, taken in the Torres Strait Finfish Fishery
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 31 October 2013.
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 31 October 2013. The only effect of this amendment is to extend this date.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Geoff Richardson, Assistant Secretary, Marine Biodiversity and Biosecurity Branch (Delegate of the Minister for Sustainability, Environment, Water, Population and Communities)
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), enacted by the Commonwealth Parliament, aims to protect and manage Australia's biodiversity and environment. This legislation established a list of exempt native specimens to facilitate trade while ensuring that it does not threaten species or ecosystems. The legislative instrument in question modifies the list of exempt native specimens to address the need for continued export of certain specimens derived from fish or invertebrates taken in the Torres Strait Finfish Fishery, excluding those belonging to species listed under Part 13 of the Act. The instrument revokes existing conditions and imposes new ones, specifically that the specimens must be taken lawfully and remain exempt until 31 October 2013. This amendment responds to the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’ and aims to ensure the continued export of these specimens in an ecologically sustainable manner.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens regulation applies to specimens that are or are derived from fish or invertebrates taken in the Torres Strait Finfish Fishery, excluding those specimens that belong to species listed under Part 13 of the Act. These specimens are exempt from the trade control provisions applicable to regulated native specimens, with certain conditions. The regulation revokes the previous conditions and imposes new conditions under which these specimens remain exempt until 31 October 2013, provided they were taken lawfully. The regulation applies across the Commonwealth of Australia and is made under the authority of the EPBC Act. The Delegate of the Minister for Sustainability, Environment, Water, Population and Communities consulted with the Australian Fisheries Management Authority before making this legislative instrument. The instrument extends the date for the exemption, allowing continued export of these specimens until the specified date. The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commenced on the day after it was registered on the Federal Register of Legislative Instruments. The Statement of Compatibility with Human Rights confirms that the instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage any of the applicable rights or freedoms.
Key Provisions
The main operative sections of this legislative instrument are subsections 303DC(3) and 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which provide for the establishment and amendment of the list of exempt native specimens. This instrument specifically targets the exemption of specimens derived from fish or invertebrates taken in the Torres Strait Finfish Fishery. It revokes the existing conditions for these specimens being on the exempt list and imposes new conditions, namely, that the specimens must have been taken lawfully and that they will remain on the exempt list until 31 October 2013 (subsection 303DB). This effectively extends the date until which these specimens can be exported without the need for trade controls.
The Act imposes several obligations on the parties involved. Firstly, the Minister for Sustainability, Environment, Water, Population and Communities, or their delegate, must consult with relevant Commonwealth ministers, state ministers, and other appropriate persons or organisations before amending the list of exempt native specimens (subsection 303DC(3)). In this instance, the delegate consulted with the Australian Fisheries Management Authority, which has management responsibility for the fishery concerned. Additionally, any specimens included in the list must have been taken lawfully to ensure compliance with legal standards governing the fishery.
Breaching the conditions outlined in this instrument can result in several consequences. The primary concern is the potential for unlawful trade of native specimens, which could undermine the ecological sustainability of the Torres Strait Finfish Fishery. While the instrument itself does not specify penalties for breaches, any illegal trade activities could be subject to penalties under the EPBC Act, which may include fines and imprisonment. Specifically, under the EPBC Act, individuals or entities found guilty of illegal trade activities could face fines of up to $222,222 for individuals and $1,111,111 for bodies corporate, along with potential imprisonment terms. Additionally, the Minister may impose conditions on the export of native specimens, which, if breached, could also lead to enforcement actions.