Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the Australian environment, particularly with respect to matters of national environmental significance. One of the mechanisms within the EPBC Act is the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. The Act aims to ensure that the ecological sustainability of fisheries, among other things, is maintained. The legislative instrument in question amends the list of exempt native specimens by revoking certain conditions and imposing new ones. Specifically, it extends the date until which specimens from the Western Australian Pearl Oyster Fishery can be exported without the need for trade permits, provided they were taken lawfully. This amendment is made in line with the Australian Government’s guidelines for the ecologically sustainable management of fisheries. The decision to make these amendments involved consultation with relevant authorities, including the Western Australian Department of Fisheries, and public comment was also sought.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens targets fish and invertebrate specimens taken in the Western Australian Pearl Oyster Fishery, excluding those belonging to species listed under Part 13 of the Act. This legislation applies to entities and individuals involved in the lawful trade of these specimens, ensuring they remain exempt from the trade control provisions applicable to regulated native specimens. The geographic reach of this Act is national, impacting the entire Commonwealth of Australia, as it modifies the list of exempt specimens under the EPBC Act. The amendment extends the exemption period for these specimens until 13 December 2018, with the stipulation that the specimens must have been taken lawfully. The decision to amend the list was made in consultation with the Western Australian Department of Fisheries and after public consultation, as required by the EPBC Act.

Key Provisions

The main sections of this legislation, as outlined in the explanatory statement, involve the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, section 303DB of the EPBC Act governs the establishment of the list of exempt native specimens, which are exempt from the trade control provisions applicable to regulated native specimens. The amendment, pursuant to section 303DC, revokes the existing conditions for the inclusion of certain specimens in the list and imposes new conditions. These specimens, which are fish or invertebrate specimens taken in the Western Australian Pearl Oyster Fishery, excluding those belonging to species listed under Part 13 of the Act, will now be included in the list until 13 December 2018, provided they were taken lawfully. The obligations imposed by this legislation on the parties and entities it governs are primarily related to the lawful taking of specimens and compliance with the new conditions for their inclusion in the list. The specimens must be derived from fish or invertebrates taken lawfully within the Western Australian Pearl Oyster Fishery, and they must not belong to species listed under Part 13 of the EPBC Act. The Minister for the Environment, as per subsection 303DC(3) of the EPBC Act, is required to consult relevant Commonwealth and state ministers, as well as appropriate persons and organisations, before amending the list of exempt native specimens. Additionally, the proposal to amend the list was advertised on the Department of the Environment's website, inviting comments from interested parties, which were subsequently considered in the decision-making process. In terms of consequences for breach, the legislation does not explicitly state specific offences, penalties, or civil/criminal consequences for non-compliance. However, the inclusion of specimens in the list of exempt native specimens and the associated conditions imply that failure to adhere to these requirements could result in the specimens being subject to the trade control provisions for regulated native specimens. This could potentially lead to legal ramifications for those involved in the unlawful taking or trade of such specimens, although the exact penalties would depend on the specific breaches and the provisions of the EPBC Act. The revocation and amendment of the conditions also reflect a regulatory approach aimed at ensuring the ecological sustainability of the Western Australian Pearl Oyster Fishery, as guided by the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’.