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 26 March 2009 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 EPBC Act, taken in the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery, in force under the Western Australian Fish Resources Management Act 1994
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.
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 28 August 2015.
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 Minister for Sustainability, Environment, Water, Population and Communities consulted with the Western Australian Department of Fisheries as the Western Australian Department of Fisheries 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 23 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.
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, enacted by the Parliament of Australia, was established to address the need for the ecologically sustainable management of Australia's natural environment and heritage. The Act provides a framework for the protection of the environment and biodiversity through various mechanisms, including the establishment of a list of exempt native specimens under section 303DB. This legislative instrument amends the list of exempt native specimens to facilitate the continued export of certain fish and invertebrate specimens taken from the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery, managed under the Western Australian Fish Resources Management Act 1994. The changes were made in accordance with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries, ensuring the management arrangements for the fishery remain ecologically sustainable.
The policy objective of this amendment is to allow the continued export of these specimens until 28 August 2015, subject to certain conditions. The Minister for Sustainability, Environment, Water, Population and Communities consulted with relevant stakeholders, including the Western Australian Department of Fisheries, and the proposal was advertised for public comment. The legislative instrument is compatible with human rights and freedoms as recognised in international instruments and commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment instrument, F2012L01799, modifies the List of Exempt Native Specimens under Section 303DC of the Act. This amendment pertains specifically to specimens derived from fish or invertebrates taken in the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery, governed by the Western Australian Fish Resources Management Act 1994. By revoking previous conditions and imposing new ones, the instrument exempts these specimens from trade control provisions applicable to regulated native specimens, provided they are taken lawfully and are covered by an approved wildlife trade operation declaration. This adjustment ensures the continued export of these specimens until 28 August 2015. The decision to amend the list was made after consultation with the Western Australian Department of Fisheries and through public consultation as mandated by the EPBC Act. The instrument operates within the Commonwealth jurisdiction and is consistent with Australia’s commitment to ecologically sustainable management of fisheries.
Key Provisions
The main operative sections of the instrument (sections 303DC(3) and 303DB) involve amending the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, the instrument revokes existing conditions that were attached to the inclusion of certain specimens in the list of exempt native specimens on 26 March 2009 and imposes new conditions. Section 303DB details the criteria for the list of exempt native specimens, which exempts these specimens from the trade control provisions that apply to regulated native specimens. The new conditions require that the specimens or the fish or invertebrate from which they are derived were taken lawfully and that the specimens are covered by a declaration of an approved wildlife trade operation under section 303FN of the EPBC Act in relation to the fishery.
The obligations imposed on the parties governed by this Act include ensuring that the specimens are taken lawfully and that they are covered by a declaration of an approved wildlife trade operation. This means that any person or entity involved in the export of these specimens must comply with the conditions set out in the Act. This includes ensuring that the specimens are derived from a lawful catch and that they are part of an approved wildlife trade operation as defined under the EPBC Act. Failure to meet these conditions would mean that the specimens are not exempt from the trade control provisions, potentially impacting their exportability.
Breaching the conditions set out in this Act can result in various civil and criminal consequences. Under the EPBC Act, non-compliance with trade control provisions can lead to substantial penalties. For example, individuals may face fines of up to AUD 210,000 or imprisonment for up to five years, or both. Corporations may face even higher fines, depending on the severity of the breach and the circumstances involved. Additionally, the continued export of specimens that do not meet the conditions could result in legal action being taken by the relevant authorities, further compounding the penalties and consequences for non-compliance.