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 19 June 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 Western Australia Trochus Fishery, as defined in the management regime in force under the Western Australia 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 included in the list until 17 August 2012.
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 17 August 2012.
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 responsibility 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 25 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 need for comprehensive protection of the environment and biodiversity in Australia. The Act aims to provide a framework for the protection of the environment, particularly in relation to matters of national environmental significance. One aspect of this framework is the regulation of the trade of native specimens, with certain specimens being subject to trade controls while others are exempt. The 2012 amendment to the list of exempt native specimens under section 303DB of the EPBC Act was introduced to facilitate the continued export of certain fish and invertebrate specimens from the Western Australia Trochus Fishery, subject to specific conditions. This amendment was made following consultation with relevant authorities and stakeholders, and it ensures that the export of these specimens remains lawful and sustainable until 17 August 2012.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens according to Section 303DC pertains specifically to the specimens of fish or invertebrates, excluding those from species listed under Part 13 of the EPBC Act, harvested within the Western Australia Trochus Fishery as defined by the Western Australia Fish Resources Management Act 1994. This legislative amendment operates within the Commonwealth jurisdiction and aims to streamline the export process of these specimens by exempting them from the trade control provisions that apply to regulated native specimens. The revision of the conditions under which these specimens are included in the list of exempt native specimens is designed to ensure that such exports can continue legally until 17 August 2012, provided the specimens were taken lawfully. The decision to amend the list was informed by the Australian Government's Guidelines for the Ecologically Sustainable Management of Fisheries, which outline criteria for assessing the ecological sustainability of fishery management arrangements. The process also involved consultation with relevant stakeholders, including the Department of Fisheries Western Australia, and public notice was given on the Department of Sustainability, Environment, Water, Population and Communities' website, although no comments were received.
Key Provisions
The key provision of this legislation is the amendment of the List of Exempt Native Specimens under Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (section 303DB). This amendment involves revoking certain conditions attached to specimens taken in the Western Australia Trochus Fishery and imposing new conditions. Specifically, the amendment allows specimens of fish or invertebrates, other than those belonging to species listed under Part 13 of the EPBC Act, taken in the Western Australia Trochus Fishery to be exempt from trade control provisions if they were taken lawfully and are included in the list until 17 August 2012 (section 3). This change facilitates the continued export of these specimens until the specified date.
The obligations and requirements imposed by this Act pertain primarily to the entities managing and engaging in the Trochus Fishery. According to the new conditions, any specimens taken in this fishery must be lawfully obtained. Additionally, the inclusion of these specimens in the list of exempt native specimens is contingent upon these conditions being met. This ensures that the fishery adheres to the legal framework established by the EPBC Act while allowing for the continuation of exports within the specified timeframe.
In terms of enforcement and compliance, the Act does not explicitly detail offences or penalties for non-compliance with the new conditions. However, the overarching framework of the EPBC Act includes provisions for enforcement actions and penalties for breaches of its regulations. Under the EPBC Act, unauthorised trade of native specimens can lead to civil and criminal penalties. For individuals, the maximum penalty can include fines up to AUD 222,000 and/or imprisonment for up to five years. For corporations, the maximum penalty can be up to AUD 1,110,000. These penalties underscore the importance of adhering to the conditions set forth in the amended list of exempt native specimens.