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 25 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 Cocos (Keeling) Islands Marine Aquarium Fish 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 September 2016.
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 September 2016.
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 fisheries 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 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 24 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.
The instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Unique Identifying Number: EPBC303DC/SFS/2011/26
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with regard to matters of national environmental significance. This legislation was introduced to address the need for a comprehensive framework that could effectively manage and protect Australia's biodiversity and its ecosystems, ensuring sustainable use of natural resources. The EPBC Act was enacted by the Parliament of Australia, reflecting a policy objective to integrate environmental considerations into decision-making processes at both federal and state levels. The Act seeks to balance economic development with environmental protection, ensuring that development activities do not significantly harm the environment. In this context, the legislative instrument, F2011L01890, amends the List of Exempt Native Specimens under the EPBC Act to revise the conditions for specimens derived from the Cocos (Keeling) Islands Marine Aquarium Fish Fishery, allowing continued export until a specified date while ensuring the trade remains lawful and sustainable.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens in accordance with Section 303DC pertains to specimens derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the Act, taken within the Cocos (Keeling) Islands Marine Aquarium Fish Fishery. This legislative instrument revises the conditions under which such specimens are exempt from trade control provisions applicable to regulated native specimens. Specifically, the amendment revokes prior conditions and imposes new ones, ensuring that the specimens remain exempt from trade controls provided they were taken lawfully and are included in the list until 15 September 2016. This change facilitates continued exportation of these specimens until the specified date. The decision to amend the list was made in consultation with relevant stakeholders, including the Western Australian Department of Fisheries, and after public consultation as required by the Act. This legislative instrument, effective from the day after its registration on the Federal Register of Legislative Instruments, adheres to the requirements of the Legislative Instruments Act 2003.
Key Provisions
The key operative sections of the legislation (Section 303DC) concern the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DB allows for the establishment of a list of exempt native specimens that are not subject to the trade control provisions applicable to regulated native specimens. The legislation revokes previous conditions that were in place for specimens taken from the Cocos (Keeling) Islands Marine Aquarium Fish Fishery and imposes new conditions. These conditions include the requirement that the specimens, or the fish or invertebrate from which they are derived, were taken lawfully and that the specimens remain included in the list until 15 September 2016.
In terms of obligations, the Act requires that any specimens derived from the Cocos (Keeling) Islands Marine Aquarium Fish Fishery be taken lawfully. This means that the fishing practices and methods used must comply with all applicable laws and regulations to ensure that the specimens are obtained in a legal manner. Additionally, the Act mandates that these specimens remain on the list of exempt native specimens until 15 September 2016. This ensures that the continued export of these specimens is permitted until the specified date, subject to the condition that they were lawfully taken.
The legislation also involves consultation processes, as required by Subsection 303DC(3) of the EPBC Act. The Minister for Sustainability, Environment, Water, Population and Communities must consult with relevant Commonwealth ministers and state and territory ministers before amending the list of exempt native specimens. In this instance, the Delegate of the Minister consulted with the Western Australian Department of Fisheries, which has management responsibilities for the relevant fishery. Furthermore, the proposal to amend the list was advertised on the Department’s website, and public comments were invited for a period of 24 business days. All comments received were taken into account in the decision-making process.
Regarding the consequences of breach, the legislation does not explicitly state penalties for non-compliance with the new conditions. However, the EPBC Act generally provides for various offences and penalties for breaches related to the trade of native specimens. Offences can result in both civil and criminal penalties, including fines and imprisonment. The specific penalties depend on the nature and severity of the breach, as well as any relevant provisions under the EPBC Act or other related legislation.