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 species listed under Part 13 of the Act, taken in the Torres Strait Trochus 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 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 export of these specimens, without requiring export permits, while an approved wildlife trade operation declaration for the fishery 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 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 23 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 enacted to address the protection of the environment, particularly the conservation of biodiversity, and the regulation of activities that may have a significant impact on the environment. This legislative instrument amends the List of Exempt Native Specimens under section 303DC of the EPBC Act, aiming to streamline the export process of certain fish and invertebrate specimens from the Torres Strait Trochus Fishery. These specimens, which are not listed under Part 13 of the Act, can now be exported without the need for export permits, provided they meet specific conditions: they must be taken lawfully and be covered by a declaration of an approved wildlife trade operation. This change facilitates the export of these specimens while ensuring compliance with the Australian Government’s guidelines for ecologically sustainable management of fisheries. The amendment reflects the government's commitment to ecological sustainability and efficient trade practices within the specified fishery.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) Amendment of the List of Exempt Native Specimens, as specified in the instrument F2012L02042, pertains to the regulation of trade in native specimens and their derivatives, specifically those taken from fish or invertebrates in the Torres Strait Trochus Fishery. This legislation applies to specimens that are or derive from these species, provided they are not listed under Part 13 of the EPBC Act. The inclusion of these specimens in the list of exempt native specimens exempts them from the trade control provisions applicable to regulated native specimens, enabling their export without the need for export permits. The application of this Act extends to entities engaged in the lawful taking of these specimens and the export of such specimens, subject to the condition that they are covered by a declaration from an approved wildlife trade operation under section 303FN of the EPBC Act. This legislative instrument applies nationally and is compatible with human rights and freedoms as recognised in international instruments.
Key Provisions
The main operative sections of this legislation pertain to the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DC allows for the establishment of a list of exempt native specimens, which are exempt from trade control provisions applicable to regulated native specimens (Section 303DB). The legislative instrument revokes conditions previously attached to specimens derived from fish or invertebrates taken in the Torres Strait Trochus Fishery, subject to certain conditions. These conditions include that the specimens must be lawfully taken and covered by a declaration of an approved wildlife trade operation under Section 303FN of the EPBC Act.
The Act imposes specific obligations on the parties or entities it governs. Firstly, it requires that the specimens in question must be lawfully taken. This means that they must comply with all applicable laws and regulations concerning their capture or derivation. Secondly, the specimens must be covered by a declaration of an approved wildlife trade operation under Section 303FN of the EPBC Act. This ensures that the trade of these specimens is managed under a framework that meets the ecological sustainability criteria outlined in the Australian Government's 'Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition'.
In terms of consequences for breach, the legislation does not explicitly outline specific offences, penalties, or civil/criminal consequences. However, failure to comply with the conditions for exemption could potentially lead to the specimens being subject to the trade control provisions that they are currently exempt from, thereby necessitating export permits and other regulatory requirements. Additionally, any unlawful taking of specimens would likely be subject to the broader enforcement mechanisms under the EPBC Act, which could include fines and other penalties as prescribed by law. The lack of explicit penalties in this instrument suggests that general compliance with the EPBC Act and its regulations would be expected to be enforced through existing provisions within the Act.