Amendment of List of Exempt Native Specimens – Commission for the Conservation of Antarctic Marine Living Resources Exploratory Fisheries in Statistical Divisions 58.4.1 and 58.4.2 (the East Antarctica Fishery) and Statistical Subareas 88.1 and 88.2 (the Ross Sea Fishery), November 2020

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2020L01484 Not in force Legislative Instrument

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REPLACEMENT EXPLANATORY STATEMENT

Environment Protection and Biodiversity Conservation Act 1999

Amendment of List of Exempt Native Specimens – Commission for the Conservation of Antarctic Marine Living Resources Exploratory Fisheries in Statistical Divisions 58.4.1 and 58.4.2 (the East Antarctica Fishery) and Statistical Subareas 88.1 and 88.2 (the Ross Sea Fishery), November 2020

(Issued by the authority of the delegate of the Minister for the Environment specified in the enabling legislation)

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) places certain obligations on the Commonwealth to protect and conserve Australia’s native wildlife by regulating international trade in order to protect targeted species against over exploitation and to protect Australian and international ecosystems.

Section 303DB of the EPBC Act provides for the establishment of a list of exempt native specimens (the list). Specimens included in the list are exempt from the trade control provisions that apply to regulated native specimens.

Purpose and operation

The purpose of this instrument is to delete from the list:

  • specimens that are or are derived from fish or invertebrates taken by Australian flagged vessels authorised under permits issued under the Fisheries Management Act 1991 (Cth) to operate in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in the following Exploratory Fisheries:
    • CCAMLR Exploratory Fishery in Statistical Divisions 58.4.1 and 58.4.2 (referred to as the East Antarctica Fishery);
    • CCAMLR Ross Sea Exploratory Fishery in Statistical Subareas 88.1 and 88.2 (referred to as the Ross Sea Fishery); and
  • any notations specified in Schedule 1 to the instrument.

Schedule 2 to the instrument also includes in the list specimens that are or are derived from fish or invertebrates taken from the same two fisheries identified above, with notations that inclusion of the specimens in the list are subject to restrictions or conditions that the specimen, or the fish or invertebrate from which it is derived, was taken lawfully, and that the specimens are included in the list until the dates specified in Schedule 2.

Listing the specimens in the list will allow export of the specimens without the need for export permits, until the dates specified in Schedule 2. A link to the instrument is accessible via the Department of Agriculture, Water and the Environment’s webpage:

For the East Antarctica Fishery at http://environment.gov.au/marine/fisheries/commonwealth/aus-export-ccamlr-new-exploratory.

For the Ross Sea Fishery at http://environment.gov.au/marine/fisheries/commonwealth/ross-sea.

The effect of this instrument is to simplify the description of the specimens in the list to reflect the amended name under which these fisheries operate, and to allow continued export for these specimens’ subject to the conditions provided in the notation as specified in Schedule 2.

Incorporation

Commonwealth Acts and disallowable instruments (or instruments which were disallowable under Commonwealth legislation at any time before 1 January 2005) referred to in this instrument are incorporated as in force from time to time (section 14 of the Legislation Act 2003). However, references to Commonwealth instruments which are exempt from disallowance are incorporated as in force at the time this instrument commences (section 14 of the Legislation Act 2003).

All Commonwealth legislation can be freely accessed at the Federal Register of Legislation – https://www.legislation.gov.au/.

 

Appendix B of the Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition (the Guidelines) referred to in Schedule 2 to the instrument is incorporated as in force at the time this instrument commences. The Guidelines, incorporated by reference in this instrument, can be freely accessed on the following website:

  • Appendix B of the Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition at https://www.awe.gov.au/environment/marine/publications/guidelines-ecologically-sustainable-management-fisheries.

Strategic assessment not required

Subsection 303DC(1A) of the EPBC Act requires the Minister, in deciding whether to amend the list, to rely primarily on the outcomes of any assessment carried out for the purposes of Divisions 1 or 2 of Part 10 of the EPBC Act.

A strategic assessment is only required for fisheries managed under the Fisheries Management Act 1991 (Cth) or the Torres Strait Fisheries Act 1984 (Cth). A strategic assessment may be made for commercial fisheries under Division 1; however, there are no current strategic assessments in respect of the fisheries from which the specimens listed in Schedule 2 are taken or derived.

The fisheries listed in Schedule 2 to the instrument are not managed by the Commonwealth under the aforementioned Acts. Therefore, the EPBC Act does not require there to be a strategic assessment for the purposes of Part 10 of the Act in relation to the fisheries named in Schedule 2.

The Australian Government and State/Northern Territory governments have negotiated Offshore Constitutional Settlement (OCS) arrangements that mandate each jurisdiction’s responsibilities for managing the different fisheries resources in inshore and offshore areas. Under the OCS arrangements commercial fisheries managed by the States/NT may operate in Commonwealth waters, but operators are subject to federal laws in relation to interactions with protected species and ecological communities, and for impacts on the Commonwealth marine area.

Specimens that may be included in the list

The list established under section 303DB(1) of the EPBC Act must not include a specimen that belongs to an eligible listed threatened species unless the conditions in subsection 303DB(6) are satisfied. Under the EPBC Act, eligible listed threatened species are those species listed in the extinct, extinct in the wild, critically endangered, endangered, or vulnerable categories established under section 178 of the EPBC Act (see sections 303BC and 528 of the EPBC Act. 

Those specimens that belong to species listed in the conservation dependent category of the EPBC Act are not eligible listed threatened species and may therefore be included in the list, subject to the conditions provided in the notation.  

The list established under section 303DB(1) of the EPBC Act must not include a specimen that belongs to species listed on Australia’s List of Migratory Species established under section 209 of the EPBC Act. The List of Migratory Species includes all migratory species that are native species, and species that are included in the appendices to the Bonn Convention, and all migratory bird species included in annexes established under international agreements with Japan (JAMBA) and China (CAMBA), and all native species identified in any other list or agreement approved by the minister.

The list established under section 303DB(1) of the EPBC Act must not include a specimen that belongs to a species listed on the List of Marine Species established under section 248 of the EPBC Act. When first established, the List of Marine Species contained all marine species identified at section 248 of the EPBC Act. The List of Marine Species also contains additional species approved by the Minister in consultation with the Threatened Species Scientific Committee.

In accordance with section 303CA of the EPBC Act, specimens that are derived from taxa that are listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are not included in the list.

Assessment of specimens

In determining to include the specimens in the list, the Minister’s delegate had regard to the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition.' These Guidelines establish the criteria for assessment of the ecological sustainability of the relevant fishery’s management arrangements.

Consultation

Subsection 303DC(3) of the EPBC Act provides that before amending the list, the Minister 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.

The Australian Fisheries Management Authority has been consulted and supports amending the list to include product derived from the East Antarctica Fishery and the Ross Sea Fishery.

In addition, the proposal to amend the list was advertised on the Department’s website and comment was invited from interested people for 26 business days from 24 July 2020 to 1 September 2020. No public comments were received.

This instrument is a legislative instrument for the purposes of the Legislation Act 2003.

The instrument commences the day after it is registered.

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendment of List of Exempt Native Specimens – Commission for the Conservation of Antarctic Marine Living Resources Exploratory Fisheries in Statistical Divisions 58.4.1 and 58.4.2 (the East Antarctica Fishery) and Statistical Subareas 88.1 and 88.2 (the Ross Sea Fishery), November 2020

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of this instrument is to delete from the list:

  • specimens that are or are derived from fish or invertebrates taken by Australian flagged vessels authorised under permits issued under the Fisheries Management Act 1991 (Cth) to operate in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in the following Exploratory Fisheries:
    • CCAMLR Exploratory Fishery in Statistical Divisions 58.4.1 and 58.4.2 (referred to as the East Antarctica Fishery);
    • CCAMLR Ross Sea Exploratory Fishery in Statistical Subareas 88.1 and 88.2 (referred to as the Ross Sea Fishery); and
  • any notations specified in Schedule 1 to the instrument.

Schedule 2 to the instrument also includes in the list specimens that are or are derived from fish or invertebrates taken from the same two fisheries identified above, with notations that inclusion of the specimens in the list are subject to restrictions or conditions that the specimen, or the fish or invertebrate from which it is derived, was taken lawfully, and that the specimens are included in the list until the dates specified in Schedule 2.

Listing the specimens in the list will allow export of the specimens without the need for export permits, until the dates specified in Schedule 2. A link to the instrument is accessible via the Department of Agriculture, Water and the Environment’s webpage:

For the East Antarctica Fishery at http://environment.gov.au/marine/fisheries/commonwealth/aus-export-ccamlr-new-exploratory.

For the Ross Sea Fishery at http://environment.gov.au/marine/fisheries/commonwealth/ross-sea.

The effect of this instrument is to simplify the description of the specimens in the list to reflect the amended name under which these fisheries operate, and to allow continued export for these specimens’ subject to the conditions provided in the notation as specified in Schedule 2.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Adam Sincock, Principal Director, Wildlife Trade Office

(Delegate of the Minister for the Environment)

 

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide a framework for the protection of Australia's native wildlife and ecosystems. The Act places certain obligations on the Commonwealth to regulate the international trade of native specimens to prevent overexploitation and to protect Australian and international ecosystems. This legislative instrument, issued by the authority of the delegate of the Minister for the Environment, seeks to amend the List of Exempt Native Specimens under section 303DB of the EPBC Act. The instrument deletes specimens that are or are derived from fish or invertebrates taken by Australian flagged vessels authorised under the Fisheries Management Act 1991 to operate in the CCAMLR Exploratory Fishery in Statistical Divisions 58.4.1 and 58.4.2 (the East Antarctica Fishery) and the CCAMLR Ross Sea Exploratory Fishery in Statistical Subareas 88.1 and 88.2 (the Ross Sea Fishery). The objective of this amendment is to reflect the amended names of these fisheries and to allow continued export of these specimens subject to the conditions specified in Schedule 2. The instrument incorporates relevant Commonwealth Acts and disallowable instruments as in force from time to time, and exempt instruments as in force at the time this instrument commences. The instrument is compatible with human rights as it does not raise any human rights issues. The instrument is a legislative instrument for the purposes of the Legislation Act 2003, and it commences the day after it is registered. The Australian Fisheries Management Authority has been consulted and supports amending the list to include products derived from the East Antarctica Fishery and the Ross Sea Fishery. The proposal to amend the list was advertised on the Department's website, and no public comments were received.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the regulation of international trade of native specimens to protect targeted species against over exploitation and to safeguard Australian and international ecosystems. This particular legislative instrument amends the List of Exempt Native Specimens by removing specimens derived from fish or invertebrates taken by Australian flagged vessels authorised under permits issued under the Fisheries Management Act 1991 to operate in the CCAMLR Exploratory Fishery in Statistical Divisions 58.4.1 and 58.4.2 (East Antarctica Fishery) and Statistical Subareas 88.1 and 88.2 (Ross Sea Fishery). The instrument also incorporates specimens derived from these fisheries into the list, subject to conditions that the specimens were taken lawfully and are included in the list until specified dates outlined in Schedule 2. The instrument's effect is to simplify the description of the specimens in the list to reflect the amended name under which these fisheries operate, and to allow continued export of these specimens subject to the conditions provided in the notation as specified in Schedule 2. The instrument applies to the Commonwealth and operates nationally, with the inclusion of specimens in the list allowing export without the need for export permits until the dates specified in Schedule 2. The instrument does not require a strategic assessment as the fisheries are not managed by the Commonwealth under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984. The instrument is compatible with human rights as it does not raise any human rights issues.

Key Provisions

The primary sections relevant to this legislative instrument are sections 303DB and 303DC of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB establishes the list of exempt native specimens, while section 303DC outlines the process for amending this list, including the requirement for the Minister to consult with relevant stakeholders (section 303DC(3)) before making any amendments. The instrument amends this list by deleting certain specimens derived from fish or invertebrates taken from specific fisheries in the East Antarctica and Ross Sea regions, and by including other specimens under specific conditions and notations, as detailed in Schedules 1 and 2 of the instrument. The obligations imposed by this Act on the parties and entities it governs include ensuring that any specimens derived from the specified fisheries are taken lawfully and comply with the conditions set out in Schedule 2. Specifically, these specimens must be included in the list of exempt native specimens only until the dates specified in Schedule 2, and their export must adhere to the conditions and restrictions noted in the Schedules. The Act also mandates that the Minister consult with relevant stakeholders, such as the Australian Fisheries Management Authority, before making any amendments to the list. Furthermore, the Act requires the Minister to rely on any relevant assessment carried out under Divisions 1 or 2 of Part 10 of the EPBC Act when deciding whether to amend the list. In terms of offences and penalties, the Act does not specify penalties for non-compliance with the provisions of the instrument itself. However, any illegal trade in native specimens or failure to comply with the conditions specified in the list could potentially lead to enforcement actions under the EPBC Act, which may include fines and imprisonment. For example, unauthorised export of regulated native specimens is an offence under section 326 of the EPBC Act, which carries a maximum penalty of 10 years imprisonment and/or significant fines. Additionally, any actions that result in the unlawful taking of specimens or violate the conditions of the list could also be subject to penalties under other relevant legislation, such as the Fisheries Management Act 1991. The instrument, by amending the list, ensures that exports remain compliant with the EPBC Act until the specified dates, thereby avoiding potential legal repercussions for those involved in the trade.

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