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 December 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 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 December 2012. 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 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 responsibility for the fisheries 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 was enacted to address the need for the protection and management of the Australian environment, particularly in relation to biodiversity conservation. This legislation provides a framework for the protection of the environment by regulating activities that may impact upon matters of national environmental significance. The Act was introduced by the Australian Parliament to fill a gap in environmental protection and to ensure the sustainable use of natural resources. The legislative instrument F2012L02004 amends the list of exempt native specimens in accordance with Section 303DC of the EPBC Act, which allows for the exemption of certain native specimens from the trade control provisions. This amendment revokes previous conditions and imposes new ones for specimens taken in specified fisheries, ensuring compliance with management strategies and the ecological sustainability of fisheries. The policy objective behind this amendment is to facilitate the continued export of these specimens until a specified date, while maintaining adherence to the guidelines for ecologically sustainable management of fisheries.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 Amendment of the List of Exempt Native Specimens in accordance with Section 303DC applies to specimens that are or are derived from fish or invertebrates, specifically those taken in the Western Deepwater Trawl Fishery and North West Slope Trawl Fishery, provided they are not species listed under Part 13 of the Act. The Act exempts these specimens from trade control provisions that apply to regulated native specimens. The amendment revokes previous conditions on the inclusion of these specimens in the list of exempt native specimens, replacing them with new conditions that the specimen must be taken lawfully and must remain in the list until 12 December 2012. Additionally, it requires 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 against the criteria on which EPBC Act decisions are based, and 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. This legislative instrument commenced on the day after it was registered on the Federal Register of Legislative Instruments and is compatible with human rights and freedoms as declared in relevant international instruments.
Key Provisions
The primary operative sections of the legislative instrument are Sections 303DB and 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB outlines the establishment of a list of exempt native specimens, which are exempt from trade control provisions that apply to regulated native specimens. Section 303DC provides for the amendment of this list, allowing for the inclusion or exclusion of specific specimens. In this case, the instrument revokes previous conditions attached to the inclusion of certain fish and invertebrate specimens in the list of exempt native specimens and imposes new conditions. Specifically, it removes the conditions that these specimens must be taken lawfully and must be included in the list until 12 December 2012. It also mandates that the Australian Fisheries Management Authority (AFMA) must inform the relevant department of any intended amendments to management arrangements that may affect the assessment against the criteria for ecologically sustainable management, as outlined in the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. Additionally, it requires AFMA to 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 several obligations and requirements on the parties it governs. The most significant of these are placed on AFMA, which is responsible for managing the Western Deepwater Trawl Fishery and the North West Slope Trawl Fishery. AFMA must ensure that any management arrangements are in line with the criteria for ecologically sustainable management and must inform the relevant department of any changes that may impact these criteria. Additionally, AFMA must ensure that its management arrangements are complementary to the School Shark Stock Rebuilding Strategy 2008. These obligations are designed to ensure that the fisheries in question are managed in a way that is consistent with broader environmental and biodiversity objectives.
The legislative instrument also outlines potential consequences for breaches of the Act's provisions. While the explanatory statement does not specify penalties for non-compliance, breaches of the EPBC Act can result in substantial penalties under Section 528. For corporations, the maximum penalty can be up to $66,600, while for individuals, the maximum penalty can be up to $13,320, along with potential imprisonment. These penalties reflect the seriousness with which the Act treats non-compliance, particularly regarding the management of native species and biodiversity conservation. Civil and criminal liability may also arise for those who knowingly or recklessly contravene the Act, further incentivising compliance with its provisions.
Overall, the legislative instrument serves to fine-tune the management of fish and invertebrate specimens taken from specified fisheries, ensuring that they remain exempt from trade controls while aligning with broader environmental objectives. The obligations placed on AFMA are crucial for maintaining the ecological sustainability of these fisheries, and the potential penalties for non-compliance underscore the importance of adhering to the Act’s provisions.