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 28 September 2007 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 Australian Western Rock Lobster Fishery, as defined in the management regime in force under the Western Australian 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 28 February 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
28 February 2013.
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.
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, including the regulation of native specimen trade. In this context, F2012L01629 is a legislative instrument amending the List of Exempt Native Specimens under Section 303DC of the EPBC Act. This amendment was introduced to facilitate the continued export of certain specimens from the Western Australian Western Rock Lobster Fishery until 28 February 2013, while ensuring that they comply with specific conditions, such as being taken lawfully. The instrument revokes previous conditions and imposes new ones, reflecting the Australian Government’s guidelines for ecologically sustainable management of fisheries. This legislative instrument was developed by the Delegate of the Minister for Sustainability, Environment, Water, Population and Communities, following appropriate consultations, including with the Department of Fisheries Western Australia.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens instrument modifies the conditions under which certain native specimens can be traded without the restrictions that apply to regulated native specimens. Specifically, it concerns specimens of fish or invertebrates taken in the Western Australian Western Rock Lobster Fishery, excluding those species listed under Part 13 of the EPBC Act. The amendment removes previous conditions that were subject to the inclusion of these specimens in the list of exempt native specimens as of 28 September 2007 and imposes new conditions: the specimens must have been taken lawfully, and they remain exempt until 28 February 2013. This change is intended to facilitate continued export of these specimens under the specified conditions, in line with the Australian Government’s 'Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition'. The Minister for Sustainability, Environment, Water, Population and Communities consulted with relevant parties, including the Department of Fisheries Western Australia, prior to making this amendment, as required by the EPBC Act. This legislative instrument does not affect any rights or freedoms and is compatible with international human rights standards.
Key Provisions
The primary operative sections of this legislation pertain to the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DB, which outlines the process for establishing a list of exempt native specimens, is referenced. The amendment in question revokes the existing conditions under which certain specimens were exempt from trade controls and replaces them with new conditions (subsection 303DC(3)). The revised conditions state that specimens derived from fish or invertebrates, excluding those belonging to species listed under Part 13 of the EPBC Act, taken in the Western Australian Western Rock Lobster Fishery, are exempt from trade control provisions, provided they were taken lawfully and remain in the list until 28 February 2013.
The Act imposes several obligations on the parties involved. It requires that any specimens included in the amended list must be taken lawfully, as per the conditions outlined. Additionally, the Department of Fisheries Western Australia must ensure compliance with these conditions and oversee the management of the fishery to maintain the ecological sustainability of the fishery's management arrangements. This is in accordance with the Australian Government’s 'Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition', which were considered during the decision to amend the list.
Failure to comply with the provisions of the EPBC Act and the conditions imposed by this legislative instrument can lead to significant legal consequences. While the Explanatory Statement does not specify the exact offences, penalties, or consequences for breach, it is implied that any breaches of the Act could result in civil or criminal penalties. Given that the Act is designed to protect biodiversity and manage fisheries sustainably, penalties could include fines, imprisonment, or both, depending on the severity and intent of the breach. The exact penalties would be determined under the relevant sections of the EPBC Act and other applicable laws. The legislative instrument is designed to ensure that the continued export of these specimens is managed within the framework of sustainable ecological practices.