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 include the following specimens in the list of exempt native specimens:
- 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 Australian South Coast Crustacean Fishery,
with a notation that inclusion of the specimens in the list is subject to the following restrictions or conditions:
- the specimen, or the fish or invertebrate from which it is derived, was taken lawfully; and
- the specimens are included in the list while covered by the declaration of an approved wildlife trade operation under section 303FN of the EPBC Act in relation to the fishery.
Listing of the specimens described above in the list of exempt native specimens will allow export of these specimens, without requiring export permits, as long as an approved wildlife trade operation declaration is in force.
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 22 business days. No comments were received.
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/2011/44
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for a comprehensive framework to protect the environment and biodiversity. This Act provides mechanisms to manage activities that may have significant environmental impacts, including the regulation of trade in native specimens. One of the specific provisions, Section 303DB, establishes a list of exempt native specimens, which are not subject to the trade control provisions that apply to regulated native specimens. This amendment, F2011L02385, was introduced to address a gap in the regulation of trade in native specimens by including certain fish and invertebrate specimens taken in the Western Australian South Coast Crustacean Fishery on the list of exempt native specimens, subject to certain conditions. This change was enacted by the Parliament of Australia and aims to streamline the export process for these specimens while ensuring they are managed sustainably, in line with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment instrument pertains specifically to the inclusion of certain specimens in the list of exempt native specimens. This amendment applies to specimens that are or are derived from fish or invertebrates, with the crucial exception of those belonging to species listed under Part 13 of the EPBC Act, if taken in the Western Australian South Coast Crustacean Fishery. The inclusion of these specimens in the list exempts them from the trade control provisions that apply to regulated native specimens, thereby facilitating their export without the necessity of export permits. However, this exemption is contingent upon two conditions: the specimens must have been taken lawfully and must be covered by a declaration of an approved wildlife trade operation under section 303FN of the EPBC Act in relation to the fishery. The decision to amend the list involved consultations with the Western Australian Department of Fisheries, which has management responsibilities for the fishery, and an advertisement on the Department of Sustainability, Environment, Water, Population and Communities' website to invite comments from interested parties, though no comments were received. This legislative instrument, governed by the Legislative Instruments Act 2003, commenced the day after its registration on the Federal Register of Legislative Instruments.
Key Provisions
The primary sections relevant to this legislative instrument are sections 303DB and 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB sets out the process for the establishment of a list of exempt native specimens, which are not subject to the trade control provisions that apply to regulated native specimens. Section 303DC, meanwhile, outlines the procedure for amending this list, including the requirement for the Minister for Sustainability, Environment, Water, Population and Communities to consult relevant Commonwealth ministers, state and territory ministers, and potentially other persons and organisations before making amendments.
The legislative instrument imposes several obligations on the parties involved. Firstly, the specimens of fish or invertebrates, taken in the Western Australian South Coast Crustacean Fishery, must be lawfully obtained to be exempt from the trade control provisions. Secondly, these specimens are only exempt if they are covered by a declaration of an approved wildlife trade operation under section 303FN of the EPBC Act. This means that the specimens must be part of a declared operation to qualify for the exemption. Additionally, the Minister for Sustainability, Environment, Water, Population and Communities must consult relevant stakeholders, including the Western Australian Department of Fisheries, before including these specimens in the list of exempt native specimens.
The legislative instrument also outlines the potential consequences for breaches of the EPBC Act. However, specific offences, penalties, or civil and criminal consequences for non-compliance with the amendments to the list of exempt native specimens are not explicitly stated in the explanatory statement. In general, breaches of the EPBC Act can lead to both civil and criminal penalties. Civil penalties may include fines, while criminal penalties can involve imprisonment, depending on the nature and severity of the breach. The maximum penalties for breaches under the EPBC Act can vary widely, with some offences carrying fines of up to $66,000 for individuals and $330,000 for corporations, along with potential imprisonment terms. The specifics of the penalties would depend on the exact nature of the contravention and the discretion of the court.