EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 80
Issued by the Authority of the Minister for the Environment, Heritage and the Arts
Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 1)
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance. Section 520 of the EPBC Act provides, in part, that the Governor-General may make regulations prescribing all matters required or permitted by the EPBC Act to be prescribed, or necessary or convenient to be prescribed for carrying or giving effect to the EPBC Act.
These Regulations amend the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) to provide for greater flexibility in the operation of regulations which prohibit and regulate how non-commercial fishing can be carried out within Commonwealth reserves. The provisions will also apply to conservations zones.
The EPBC Act provides for proclamation of Commonwealth reserves and conservation zones. Commonwealth reserves provide permanent protection, conservation and management of the natural and/or cultural values of an area, and may only be revoked with the approval of both Houses of the Parliament. Proclamation of a conservation zone under the EPBC Act is an interim measure to protect an area while it is assessed for possible inclusion in a Commonwealth reserve under the EPBC Act.
The Regulations will allow the Director of National Parks to make determinations for an increased range of matters relating to fishing methods and equipment. Actions taken in accordance with these determinations will be exempt from the relevant offence provisions.
The Regulations create additional strict liability offences for a range of offences in which all of the physical elements of the offences are clear. Such offences include the use or possession of devices designed to take animals within a Commonwealth reserve, the taking of fish in contravention of a determination for an area of water, and taking a range of prohibited actions related to using certain equipment, or types of bait to take fish within a Commonwealth reserve. The imposition of strict liability for these offences is appropriate and necessary to ensure the continued protection of fish and biodiversity generally within Commonwealth reserves.
The penalty for taking fish in a Commonwealth reserve is increased reflecting the serious nature a contravention would have to the protection of biodiversity within Commonwealth reserves.
The Regulations are outlined in more detail in Attachment A.
Consultation on the Regulations was not specifically undertaken however in 2008 consultation was undertaken with recreational fishing bodies in relation to the operation of the EPBC Regulations governing recreational fishing in Commonwealth marine reserves.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
Details of the proposed Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered.
Regulation 3 – Amendment of Environment Protection and Biodiversity Conservation Regulations 2000
This regulation provides that the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] – paragraph 12.18(2)(a)
Paragraph 12.18(2)(a) of the Principal Regulations provides that prohibitions on the use or possession of certain items within a Commonwealth reserve do not apply to persons carrying out certain commercial fishing operations. This item clarifies that the items referred to in 12.18(2)(a) are the items that are mentioned in subregulation 12.18(1).
Item [2] – paragraph 12.18(2)(b)
Paragraph 12.18(2)(b) of the Principal Regulations provides that prohibitions on the use or possession of certain items within a Commonwealth reserve do not apply to possession by persons on vessels in passage through a marine area. This item replaces paragraph 12.18(2)(b) to provide that the prohibition does not apply to possession of the item by a person on a vessel, in passage through a marine area or anchored or moored in a marine area, if the item is stowed securely.
Item [3] – subregulations 12.18(4A) and (4B)
Paragraphs 12.18(1)(b) and (d) of the Principal Regulations prohibit the use or possession in a Commonwealth reserve of a spear or a spear gun respectively.
This item inserts new subregulations 12.18(4A) and (4B) into the Principal Regulations. Regulation 12.18(4A) provides that paragraph 12.18(1)(b) does not apply to the use or possession of a spear in an area in a Commonwealth reserve if the Director has made a determination that a spear may be used as a method for taking fish in that area under paragraph 12.35(3)(b).
Regulation 12.18(4B) provides that paragraph 12.18(1)(d) does not apply to the use or possession of a spear gun in an area in a Commonwealth reserve if the Director has made a determination that a spear gun may be used as a method for taking fish in that area under paragraph 12.35(3)(b).
Item [4] – subregulations 12.18(6A) and 12.18(7)
Paragraph 12.18(1)(h) of the Principal Regulations prohibits the use or possession in a Commonwealth reserve of a device that can be used, or is designed, for taking an animal other than certain equipment for catching fish.
This item inserts a new subregulation 12.18(6A) into the Principal Regulations. Subregulation 12.18(6A) provides that paragraph 12.18(1)(h) does not apply to the use or possession of a device that can be used, or is designed, for taking fish in an area in a Commonwealth reserve if the Director has made a determination that a device of that kind may be used for taking fish in that area under paragraph 12.35(3)(b).
This item also inserts a new subregulation 12.18(7) into the Principal Regulations. Subregulation 12.18(7) provides that an offence against subregulation (1) is a strict liability offence.
Item [5] – subregulation 12.35(2)
This item replaces subregulation 12.35(2) to provide that it is an offence for a person to take fish in a Commonwealth reserve in contravention of a determination made by the Director.
The item also increases the penalty to 50 penalty units and inserts a note that provides the details of offence provisions provided for by the EPBC Act that are similar in nature to this regulatory offence.
Item [6] – paragraph 12.35(3)(b)
Paragraph 12.35(3)(b) of the Principal Regulations provides that where fishing is allowed the Director may determine in writing that specific kinds of fishing equipment must not be, or must be, carried or used; the kind of fish, numbers of fish or species of fish or fillets of fish a person may take or have in their possession; the sizes of fish that can be taken or in a person’s possession; how fish that is stored in a freezer is to be marked and that the tethering of fish is prohibited.
This item replaces paragraph 12.35(3)(b) and includes a number of additional matters that the Director may determine in writing in relation to an area where fishing is allowed. The additional matters relate to the methods of taking fish, the use of equipment to breathe underwater to take fish, the numbers of fillets of fish a person may have in their possession, the types or origin of bait that may be used and where cleaning or filleting of fish may be undertaken.
Item [7] – subregulations 12.35(4) and (5)
Subregulation 12.35(4) of the Principal Regulations provides that a person fishing in an area of water must not use equipment that allows the person to breathe under the surface of the water or attract or take fish or install equipment to take fish other than specified types. The penalty is set at 30 penalty units. Subregulation 12.35(5) of the Principal Regulations provides that a person must not use a live animal or native species, other than a fish, as bait for fishing; leave a fishing line unattended or clean fish within certain areas. The penalty is set at 15 penalty units.
This item replaces subregulations 12.35(4) and (5) to provide that they are offence provisions. The item makes amendments to subregulation 12.35(4) to provide that it is an offence for a person fishing in an area of water take any of the actions referred to and creates an additional offence in relation to the tethering of fish.
This item also inserts two new subregulations 12.35(4A) and (5A) into the Principal Regulations. Subregulation 12.35(4A) provides that the offence provisions in subregulation 12.35(4) do not apply to an action taken by a person if the action is in accordance with a determination made under subregulation 12.35(3) for the area of water. Subregulation 12.35(5A) provides that the offence provisions in subregulation 12.35(5) do not apply to a person if the person is acting in accordance with a determination made under subregulation 12.35(3) for the area of water.
Item [8] – subregulation 12.35(7)
This item inserts a new subregulation 12.35(7) into the Principal Regulations. Regulation 12.35(7) provides that an offence against subregulations 12.35(2), (4) or (5) is a strict liability offence.