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 22 October 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 Pearl Oyster 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 13 December 2013.
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 13 December 2013. The only effect of this amendment is to extend this date.
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 the Environment 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 the Environment consulted with the Western Australia Department of Fisheries as the Western Australia 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 the Environment’s 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.
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.
STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT DOES NOT RAISE ANY HUMAN RIGHTS ISSUES
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, particularly in relation to trade and movement of biological resources. The Act provides for the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. This legislative instrument amends the list of exempt native specimens by revoking certain conditions and imposing new ones for specimens derived from the Western Australian Pearl Oyster Fishery, allowing continued export until 13 December 2013. The decision to amend the list was made in consultation with relevant stakeholders, including the Western Australia Department of Fisheries, and after inviting public comment. The instrument is compatible with human rights and freedoms as recognised or declared in international instruments.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens concerns the management of trade in native specimens, specifically those derived from fish and invertebrates in the Western Australian Pearl Oyster Fishery. This legislative instrument applies to entities involved in the lawful taking of such specimens and their subsequent export, ensuring that these activities remain exempt from the trade control provisions applicable to regulated native specimens. The amendment revokes existing conditions and imposes new ones, extending the exemption period until 13 December 2013. It is pertinent to note that the amendment was made in consultation with the Western Australia Department of Fisheries and after inviting public comment, thereby adhering to the procedural requirements outlined in the EPBC Act. The instrument, which commenced on the day after its registration, does not engage any of the applicable rights or freedoms and is compatible with the human rights and freedoms recognised in international instruments.
Key Provisions
The main operative sections of this legislative instrument are Section 303DC, which pertains to the amendment of the list of exempt native specimens, and Section 303DB, which establishes the criteria for such amendments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DC outlines the process for revoking the conditions previously attached to specimens derived from the Western Australian Pearl Oyster Fishery and imposing new conditions that extend the exemption period until 13 December 2013. This change ensures that the specimens remain exempt from trade control provisions for regulated native specimens until the specified date. Section 303DB, on the other hand, provides the framework for the creation and maintenance of the list of exempt native specimens, ensuring that only those specimens meeting the criteria are exempt.
The Act imposes several obligations on the parties and entities it governs. Firstly, any person or entity intending to export specimens derived from the Western Australian Pearl Oyster Fishery must ensure that the specimens were taken lawfully, as per the newly imposed conditions. This requirement ensures compliance with both federal and state regulations concerning the lawful harvesting of marine resources. Secondly, the Act mandates that the Minister for the Environment consult with relevant stakeholders, including the Western Australian Department of Fisheries, before making amendments to the list of exempt native specimens. This consultation process is intended to gather expert opinions and ensure that the amendments align with ecologically sustainable management practices. Additionally, the proposal to amend the list must be advertised on the Department of the Environment’s website, inviting comments from interested parties for a period of 24 business days. All comments received must be considered in the decision-making process.
Failure to comply with the provisions of the Act can result in various legal consequences. Although specific offences and penalties are not detailed in the explanatory statement, breaches of the EPBC Act generally attract substantial penalties. For instance, violations of trade control provisions related to regulated native specimens can lead to fines and imprisonment. The maximum penalties can vary depending on the severity of the offence, with higher fines and longer imprisonment terms for more egregious violations. Additionally, non-compliance with the consultation and advertising requirements could result in administrative penalties or legal challenges from affected parties. It is crucial for all stakeholders to adhere to the Act’s provisions to avoid these potential consequences.