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 18 March 2008 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 Western Australian Abrolhos Islands and Mid West Trawl Managed 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 15 March 2018
The only effect of this amendment is to extend this date. 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 15 March 2018.
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 Department of Fisheries Western Australia as the Department of Fisheries Western Australia 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 21 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 by the Australian Parliament to address the need for comprehensive protection of the environment and biodiversity. This legislation aims to ensure the sustainable management of Australia's natural resources and to prevent significant harm to the environment from proposed actions. The Act provides a framework for the protection of the environment and biodiversity, including the regulation of trade in native specimens. One of the mechanisms under the EPBC Act is the establishment of a list of exempt native specimens, which are not subject to the trade control provisions applicable to regulated native specimens. The legislative instrument F2013L00656 amends the list of exempt native specimens by revoking and imposing new conditions on the inclusion of certain fish and invertebrate specimens from the Western Australian Abrolhos Islands and Mid West Trawl Managed Fishery. This amendment extends the exemption until 15 March 2018, facilitating continued export of these specimens while ensuring compliance with the Australian Government's guidelines for ecologically sustainable fisheries management.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens, implemented through legislative instrument F2013L00656, modifies the conditions under which certain fish and invertebrate specimens from the Western Australian Abrolhos Islands and Mid West Trawl Managed Fishery are exempt from trade controls. This Act applies to specimens taken lawfully within the specified fisheries, excluding those derived from species listed under Part 13 of the Act. The changes made by this instrument revoke the previous conditions that applied to the inclusion of these specimens in the list of exempt native specimens, extending their exemption until 15 March 2018. This legislative amendment is confined to the Commonwealth jurisdiction, focusing on native specimens involved in trade activities, with specific reference to the fisheries management guidelines established by the Australian Government. The process of amending the list involved consultation with relevant Commonwealth and state fisheries authorities and a public comment period, though no comments were received. This legislative instrument is designed to ensure the continued export of these specimens while maintaining compliance with the Act’s ecological sustainability criteria.
Key Provisions
The main operative sections of this instrument (F2013L00656) amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by modifying the list of exempt native specimens (sections 303DB and 303DC). Specifically, it revokes the conditions previously applied to specimens derived from fish or invertebrates, other than those belonging to species listed under Part 13 of the Act, taken in the Western Australian Abrolhos Islands and Mid West Trawl Managed Fishery. This amendment allows these specimens to be included in the list of exempt native specimens without any conditions, thereby exempting them from the trade control provisions applicable to regulated native specimens. The amendment also sets new conditions, stipulating that the specimens must have been taken lawfully and that their inclusion in the list is valid until 15 March 2018. This change ensures continued export of these specimens until the specified date.
The obligations and requirements imposed by this Act on the parties or entities it governs include the necessity for specimens to be taken lawfully. This means that any fish or invertebrate specimens, and subsequently derived specimens, must have been harvested in compliance with relevant fishing laws and regulations. Furthermore, the Act mandates that these specimens are only exempt from trade control provisions until 15 March 2018. This period-specific exemption ensures that the ecological sustainability of the fishery is maintained, as per the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition.’ The Act also requires consultation with relevant stakeholders, such as the Department of Fisheries Western Australia, before any amendments to the list are made.
The Act delineates specific consequences for breaches of its provisions. Although the instrument does not explicitly mention any penalties, violations of the conditions set by the EPBC Act could potentially lead to legal actions under the broader legislative framework. For example, unauthorised trade of specimens or failure to comply with the lawful taking conditions could result in civil or criminal penalties under the EPBC Act or other relevant legislation. The maximum penalties for such offences can vary but may include substantial fines or imprisonment, depending on the severity and intent of the breach. The Act’s compatibility with human rights and freedoms, as stated in the Human Rights (Parliamentary Scrutiny) Act 2011, ensures that any enforcement actions are proportionate and justifiable under law.