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 1 December 2004 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 Deepwater Trawl Fishery and North West Slope Trawl 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
- the specimens are included in the list until 12 October 2012
- the Australian Fisheries Management Authority to inform the Department of Sustainability, Environment, Water, Population and Communities of any intended amendments to the management arrangements that may affect the assessment of the fishery against the criteria on which EPBC Act decisions are based, and
- the Australian Fisheries Management Authority to ensure that management arrangements in the Western Deepwater Trawl Fishery are complementary to the Australian Fisheries Management Authority’s School Shark Stock Rebuilding Strategy 2008.
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 12 October 2012.
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 Australian Fisheries Management Authority as the Australian Fisheries Management Authority 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 21 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 26 April 2012.
Overview
The Environment Protection and Biodiversity Conservation Act 1999, enacted by the Australian Parliament, serves to safeguard Australia's environmental heritage and biodiversity by regulating activities that may impact on the environment, including the trade of native species. This legislation establishes a framework for the protection of native species and their habitats, aiming to balance environmental conservation with economic activities. The Act was introduced to address the need for a comprehensive and integrated approach to environmental protection, considering the ecological, social, and economic impacts of various activities on Australia's natural resources.
In 2012, the Act was amended to modify the list of exempt native specimens, specifically concerning specimens derived from the Western Deepwater Trawl Fishery and the North West Slope Trawl Fishery. The amendment aimed to ensure that these specimens remain exempt from trade control provisions, subject to certain conditions. The policy objective was to maintain the ecological sustainability of these fisheries while allowing continued export of the specimens until a specified date. This legislative change was made in consultation with relevant authorities, including the Australian Fisheries Management Authority, and after inviting public comment on the proposed changes.
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 specifically to the regulation of trade in native specimens, with a focus on fish and invertebrate specimens derived from the Western Deepwater Trawl Fishery and the North West Slope Trawl Fishery. These specimens are exempt from the trade control provisions that apply to regulated native specimens, provided they meet certain conditions. This legislative instrument applies to entities involved in the collection, trade, and export of these specimens, ensuring compliance with the legal framework designed to protect biodiversity. The instrument operates within the jurisdictional scope of the Commonwealth, as per the EPBC Act, and it applies nationally, with specific regard to the management practices of the Australian Fisheries Management Authority.
The conditions imposed by this legislation require that the specimens be derived from lawfully taken fish or invertebrates, exclude those belonging to species listed under Part 13 of the EPBC Act, and be included in the list of exempt native specimens until 12 October 2012. Additionally, it mandates that the Australian Fisheries Management Authority informs the relevant department of any intended amendments to the fishery's management arrangements and ensures these arrangements are aligned with the Authority's School Shark Stock Rebuilding Strategy 2008. The instrument also ensures transparency and consultation by involving the Australian Fisheries Management Authority and soliciting public comments during its development. This legislative instrument commenced on 26 April 2012 and is compatible with human rights and freedoms as declared in relevant international instruments.
Key Provisions
The main operative sections of this legislation (F2012L00914) relate to the amendment of the list of exempt native specimens under Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, Section 303DC of the Act allows for the establishment of a list of specimens that are exempt from the trade control provisions applicable to regulated native specimens. This legislative instrument revokes the conditions previously imposed on specimens taken from the Western Deepwater Trawl Fishery and the North West Slope Trawl Fishery, and instead imposes new conditions on these specimens. These new conditions require that the specimens, or the fish or invertebrates from which they are derived, must have been taken lawfully, that they remain included in the list until 12 October 2012, and that the Australian Fisheries Management Authority (AFMA) informs the relevant Department of any intended amendments to the management arrangements that may affect the assessment of the fishery against the criteria on which EPBC Act decisions are based. Additionally, AFMA must ensure that management arrangements in the Western Deepwater Trawl Fishery are complementary to the AFMA's School Shark Stock Rebuilding Strategy 2008.
The Act imposes specific obligations on the parties and entities it governs. The Australian Fisheries Management Authority is tasked with ensuring that management arrangements for the fisheries are consistent with the ecological sustainability criteria outlined in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition. Furthermore, AFMA must communicate any changes to the management arrangements to the Department of Sustainability, Environment, Water, Population and Communities, allowing for informed decision-making. This is essential to maintain the ecological sustainability of the fisheries and to ensure that the trade of these specimens remains lawful and controlled.
In terms of potential breaches and the associated consequences, while the legislative instrument itself does not explicitly outline specific offences or penalties, violations of the EPBC Act in general can lead to substantial civil and criminal penalties. For example, under Section 519 of the EPBC Act, individuals or entities found guilty of contravening the Act can face fines of up to $666,000 or imprisonment for up to five years, or both. Companies may face even higher penalties, with fines potentially reaching up to $3.3 million. Additionally, there are provisions for civil penalties and injunctions to enforce compliance and deter future breaches. The Act also provides mechanisms for the courts to order the recovery of costs associated with the enforcement actions.