EXPLANATORY STATEMENT
(Issued by the Authority of the Minister for Sustainability, Environment, Water, Population and Communities)
Environment Protection and Biodiversity Conservation Act 1999
Amendment to List of CITES Species
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides for the protection of the environment, including wildlife that may be adversely affected by trade, and the implementation of Australia’s international environmental responsibilities.
Section 303CA of the Act provides for a list of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) for the purposes of the Act (the List of CITES Species). Under subsection 303CA(3) of the Act, the list must include all species from time to time included in any of Appendices I, II and III to CITES. Subsections 303CA(9)(b) and (9)(c) of the Act provide that the Minister may amend the list, as necessary, so that it includes all species required to be included in the list under subsection 303CA(3) and so that the notations in the list are consistent with CITES.
Under Article XVI paragraph 1 of CITES, a Party may at any time include a species which is subject to regulation within its jurisdiction in Appendix III of CITES. Inclusions in Appendix III enter into force for all Parties 90 days after the CITES Secretariat has communicated the amendment. CITES Notification to the Parties 2012/044 dated 27 June 2012 has advised of the inclusion in Appendix III of two shark species:
a) Porbeagle (Lamna nasus) (included by Belgium, Cyprus, Denmark (excluding the dependent territory of Greenland), Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Netherlands, Poland, Portugal, Slovenia, Spain, Sweden and United Kingdom of Great Britain and Northern Ireland), and
b) Scalloped hammerhead (Sphyrna lewini) (included by Costa Rica).
As Australia does not propose to lodge a reservation to the amendments, the amendments would enter into force for Australia on 25 September 2012. As a consequence of this Notification, it is necessary to amend the List of CITES Species under the Act. The purpose of this Instrument is to effect these amendments.
The amendments put into effect by this Instrument are considered to have minimal impact because current fisheries management arrangements already largely incorporate the requirements for regulating the species under CITES. Exporters of these species will be affected to the extent that they will require CITES export permits, but the cost of these is minimal (approximately $75 for a permit valid for multiple use over a six-month period). Shipments without appropriate permits risk rejection by importing countries. The Department of Sustainability, Environment, Water, Population and Communities sought the views of all relevant state/territory and Commonwealth fisheries management agencies, as well as industry and exporter representatives. The Office of Best Regulatory Practice, Department of Finance and Deregulation, have advised that a Regulatory Impact Statement is not required for these amendments.
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 is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Instrument will commence on 25 September 2012.
Authority: sections 303CA(9)(b) and (c) of the Environment Protection and Biodiversity Conservation Act 1999.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, including wildlife that may be adversely affected by trade, and to implement Australia’s international environmental responsibilities. The Act was introduced to address the need for a unified legal framework to protect the environment, especially concerning species and ecosystems that may be impacted by international trade. This legislation was enacted by the Parliament of Australia and includes provisions for listing species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The objective of the Act, as highlighted in the explanatory statement, is to align Australia’s domestic laws with international commitments under CITES, thereby ensuring the protection of endangered species and facilitating their regulated trade. The Act provides for the amendment of the List of CITES Species to reflect changes in CITES Appendix III, ensuring that Australian legislation remains consistent with international standards.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 applies to all persons, entities, industries, and conduct within Australia's jurisdiction that may impact the environment, including wildlife that could be adversely affected by trade. This Act serves to implement Australia's international environmental responsibilities, particularly those outlined in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Section 303CA of the Act mandates the inclusion of species listed in any of CITES' Appendices I, II, and III within the List of CITES Species, which is subject to amendments by the Minister to ensure alignment with CITES requirements. The geographic reach of this legislation is national, affecting all entities and individuals operating within Australia, including those involved in the export and import of the listed species. This Act does not specify exclusions or exemptions, but it does rely on subordinate instruments to ensure the list of CITES species is updated in accordance with international agreements. The legislative instrument in question, which amends the List of CITES Species to include the Porbeagle and Scalloped hammerhead as per CITES Notification 2012/044, will come into effect on 25 September 2012.
Key Provisions
The primary sections of this legislation, the Environment Protection and Biodiversity Conservation Act 1999 Amendment (List of CITES Species) 2012, pertain to the updating of the List of CITES Species under section 303CA. According to subsection 303CA(3), this list must include all species from time to time included in any of the Appendices I, II and III to CITES. The authority for amending the list is granted under subsections 303CA(9)(b) and (9)(c) of the Act, which permit the Minister to make necessary amendments so that the list includes all required species and maintains consistency with CITES. In this case, the amendments reflect the inclusion of two shark species in Appendix III of CITES.
The Act imposes several obligations on parties and entities involved in the trade of these listed species. Exporters of Porbeagle (Lamna nasus) and Scalloped hammerhead (Sphyrna lewini) will now need to obtain CITES export permits, as these species are newly included in Appendix III. This requirement ensures that the trade of these species complies with international regulations aimed at protecting endangered species. The cost of a CITES export permit is approximately $75 for a permit that is valid for multiple uses over a six-month period, and failure to obtain the appropriate permits may result in shipments being rejected by importing countries.
In terms of legal consequences, breaches of the provisions under this Act could lead to both civil and criminal penalties. The Act does not specify the exact penalties within the Explanatory Statement, but generally, non-compliance with CITES regulations can lead to substantial fines and imprisonment. For instance, unauthorised trade in endangered species can result in fines up to $220,000 and/or imprisonment for up to five years under Australian law. Additionally, the rejection of shipments by importing countries due to non-compliance with CITES requirements can have significant commercial repercussions for exporters.
The legislative instrument is designed to have a minimal impact, given that existing fisheries management arrangements already incorporate many of the requirements for regulating the listed species. However, the necessity of obtaining CITES export permits for these species introduces a new layer of compliance for exporters. The Department of Sustainability, Environment, Water, Population and Communities has consulted with relevant state/territory and Commonwealth fisheries management agencies, as well as industry and exporter representatives, to ensure that the impact of these amendments is manageable. Overall, the amendments are intended to align Australian legislation with international obligations under CITES and ensure the protection of the listed shark species.