EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
List of Specimens Taken to be Suitable for Live Import Amendment 2018 (No. 5)
Instrument under subparagraph 303EC(1)(a)(i)
(Issued under Authority of the Assistant Minister for the Environment)
Under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), a live specimen is allowed to be imported only if it is included on the ‘List of Specimens taken to be Suitable for Live Import’ (Live Import List).
The Live Import List was established in accordance with s.303EB of the EPBC Act and has two Parts. Part 1 comprises species exempt from the requirement for an import permit under the EPBC Act. Part 2 comprises species that can be imported with a permit under the EPBC Act.
The effect of this instrument is to include Crassostrea gigas, Crassostrea sikamea, Crassostrea virginica, Ostrea edulis, Ostrea conchaphila and Ostrea lurida (Pacific oyster, Kumamoto oyster, Atlantic oyster, European flat oyster, Olympia oyster and northern Olympia oyster) on Part 2 of the Live Import List. Including these species on Part 2 of the Live Import List will allow the import of live specimens of these species under the specified conditions: “Research only. High security facilities only.”
Amendments to the Live Import List can be made either on the initiative of the Minister or by application. This list amendment was initiated by an application made to the Minister under section 303EE of the EPBC Act.
Consultation was carried out in accordance with s303EC(3). In this case, the Department of the Environment and Energy consulted with relevant Commonwealth, state and territory agencies for the environment, conservation and agriculture. Comments were considered in the Department’s assessment. In accordance with s303EF of the EPBC Act, the applicant’s initial assessment report was published on the Department of the Environment and Energy’s website and public comments sought. One public comment was received.
The decision instrument is a legislative instrument for the purposes of the Legislation Act 2003. It will take effect on the day after registration.
Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, including the biodiversity and heritage values, through a system of environmental assessments and approvals. The Act addresses the need for comprehensive environmental protection mechanisms that align with national and international obligations, and it establishes a framework for preventing significant environmental harm. The List of Specimens Taken to be Suitable for Live Import Amendment 2018 (No. 5) was introduced to amend the Live Import List under Part 3A of the EPBC Act, specifically to include certain oyster species on Part 2 of the List. This amendment was made following an application under section 303EE of the EPBC Act, which allows for the inclusion of species based on specified conditions. The policy objective of this amendment is to facilitate the import of live specimens of the listed oyster species for research purposes, subject to stringent conditions such as the use of high-security facilities, thereby balancing scientific research needs with environmental protection requirements. The instrument was developed through consultation with relevant agencies and the public, ensuring a balanced approach to environmental protection and scientific research.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) governs the import of live specimens in Australia, requiring that such imports comply with specific regulatory conditions. The Act applies to individuals, entities, and industries involved in the importation of live specimens, ensuring that these activities do not adversely affect Australia’s environment and biodiversity. The geographic reach of this legislation is national, applying across the Commonwealth, states, and territories. To facilitate the import of live specimens, the EPBC Act includes a 'List of Specimens taken to be Suitable for Live Import' (Live Import List), which is divided into two parts. Part 1 lists species exempt from the need for an import permit, while Part 2 lists species that can be imported with a permit. Recently, six oyster species—Crassostrea gigas, Crassostrea sikamea, Crassostrea virginica, Ostrea edulis, Ostrea conchaphila, and Ostrea lurida—were added to Part 2 of the Live Import List, allowing their import under the specified conditions of "Research only. High security facilities only." This amendment was initiated by an application under section 303EE of the EPBC Act and was preceded by consultation with relevant environmental, conservation, and agricultural agencies, as well as public consultation. The legislative instrument, which formalises this amendment, will take effect on the day after its registration, as per the Legislation Act 2003.
Key Provisions
The main operative sections of this instrument are sections 303EC, 303ED, 303EE, and 303EF of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). These sections establish the process for amending the ‘List of Specimens taken to be Suitable for Live Import’ (Live Import List). Specifically, section 303EC(1) mandates that amendments can be made by the Minister on their own initiative or by application, and section 303ED(1) requires consultation with relevant agencies. Section 303EE(1) outlines the application process for changes to the list, while section 303EF(1) necessitates the publication of the applicant’s initial assessment report on the Department of the Environment and Energy’s website, inviting public comments. This instrument amends the Live Import List by adding six oyster species to Part 2, allowing their import under specified conditions: “Research only. High security facilities only.”
The obligations imposed on parties by this Act include adherence to the conditions specified for the import of listed species. For the six oyster species now included in Part 2 of the Live Import List, this means that their import can only occur under conditions of research and within high security facilities. This ensures that the importation process is controlled and monitored to mitigate any potential risks to the environment and native species. Furthermore, entities seeking to import these species must comply with the conditions set out in the EPBC Act, which may involve obtaining the necessary permits and fulfilling any additional regulatory requirements.
Offences and penalties for breaches of the EPBC Act, including those related to the Live Import List, are governed by section 535 of the Act. A person who contravenes a provision of the EPBC Act is liable to a fine of up to $525,000 for a corporation, or $105,000 for an individual. In addition to financial penalties, criminal prosecution may be pursued, with the potential for imprisonment for up to five years. Civil penalties can also be imposed, where the court considers it appropriate to award damages or other remedies to affected parties. These stringent measures underscore the importance of compliance with the Act’s provisions and the potential consequences of non-compliance.