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 include the following specimens in the list of exempt native specimens:
- specimens that are or are derived from fish or invertebrates, other than specimens that belong to species listed under Part 13 of the EPBC Act, taken in the Torres Strait Prawn Fishery, as defined in the Torres Strait Prawn Fishery Management Plan 2009 in force under the Torres Strait Fisheries Act 1984.
with a notation that inclusion of the specimens in the list is subject to the following restrictions or conditions:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- the specimens are covered by the declaration of an approved wildlife trade operation under section 303FN of the EPBC Act in relation to the fishery.
Listing of the specimens described above in the list of exempt native specimens will allow continued export of these specimens without requiring export permits, as long as an approved wildlife trade operation declaration is in force.
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 acting on behalf of the Protected Zone Joint Authority, whom administers the 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. No comments were received.
This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
This legislative instrument does not engage any of the applicable rights or freedoms. 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.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was amended in 2013 to adjust the list of exempt native specimens under Section 303DC, allowing certain fish and invertebrate specimens taken in the Torres Strait Prawn Fishery to be exempt from trade control provisions. This amendment ensures that the export of these specimens can continue without the need for export permits, provided they are taken lawfully and are covered by a declaration of an approved wildlife trade operation. The decision to amend the list was influenced by the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’ and involved consultation with relevant authorities, including the Australian Fisheries Management Authority. The legislative instrument was registered and commenced on the day following its registration on the Federal Register of Legislative Instruments, with no comments received during the consultation period.
Scope and Application
The F2013L00492 instrument amends the Environment Protection and Biodiversity Conservation Act 1999 by updating the list of exempt native specimens, thereby excluding certain fish and invertebrate specimens from the trade control provisions that apply to regulated native specimens. This amendment applies to specimens derived from fish or invertebrates, specifically those taken in the Torres Strait Prawn Fishery and not belonging to species listed under Part 13 of the EPBC Act. The inclusion of these specimens in the list of exempt native specimens is contingent upon compliance with two conditions: the specimens must have been taken lawfully and must be covered by a declaration of an approved wildlife trade operation under section 303FN of the EPBC Act. This amendment facilitates the continued export of these specimens without the need for export permits, provided an approved wildlife trade operation declaration is in effect. The instrument applies nationally and involves consultation with relevant authorities and stakeholders, including the Australian Fisheries Management Authority, as mandated by subsection 303DC(3) of the EPBC Act. The instrument came into effect on the day following its registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of this legislative instrument are Section 303DB and Section 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB establishes the list of exempt native specimens, which are not subject to the trade control provisions that apply to regulated native specimens. Section 303DC allows for the amendment of this list. The instrument amends the list to include certain specimens taken in the Torres Strait Prawn Fishery, provided they are derived from fish or invertebrates that are not listed under Part 13 of the EPBC Act and are taken lawfully. This inclusion is also subject to the condition that the specimens are covered by a declaration of an approved wildlife trade operation under section 303FN of the EPBC Act.
The Act imposes several obligations on the parties and entities it governs. Firstly, any specimens that meet the criteria outlined in the legislative instrument must be taken lawfully, meaning they must comply with the relevant fishing regulations and laws. Secondly, the specimens must be covered by a declaration of an approved wildlife trade operation, ensuring that the trade of these specimens is conducted in accordance with the requirements of the EPBC Act. This includes adherence to any specific conditions or restrictions that may be imposed by the declaration.
There are potential civil and criminal consequences for breaches of the provisions in the EPBC Act. For example, exporting specimens that are not exempt under the Act, or failing to comply with the conditions of an approved wildlife trade operation declaration, could result in civil penalties. Under section 532 of the EPBC Act, the maximum penalty for an individual is $330,000 or five times the benefit obtained from the breach, whichever is greater. For a body corporate, the maximum penalty is $1.65 million or three times the benefit obtained from the breach, whichever is greater. Additionally, criminal offences may apply in certain circumstances, which could lead to fines and imprisonment, depending on the severity of the breach.
In summary, this legislative instrument amends the list of exempt native specimens in the EPBC Act to include certain fish and invertebrate specimens taken in the Torres Strait Prawn Fishery, subject to specific conditions. The Act imposes obligations on parties to ensure that specimens are taken lawfully and are covered by an approved wildlife trade operation declaration. Breaches of the Act may result in significant civil penalties and, in some cases, criminal consequences.