REPLACEMENT EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Amendment of List of Exempt Native Specimens – Commonwealth Eastern Tuna and Billfish Fishery and Commission for the Conservation of Antarctic Marine Living Resources Ross Sea Exploratory Toothfish Fishery, August 2019
(Issued by the authority of the delegate of the Minister for the Environment as 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 in the Commonwealth Eastern Tuna and Billfish Fishery (the ETB Fishery) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Ross Sea Exploratory Toothfish Fishery (the Ross Sea Fishery), and 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 as specified in Schedule 2.
Listing the specimens taken in the ETB Fishery in the list will allow the export of these specimens without the need for export permits, while an approved wildlife trade operation declaration for the fishery is in force. Links to the instrument to amend the list and the declaration are accessible via the Department’s website at http://environment.gov.au/marine/fisheries/commonwealth/eastern-tuna-billfish.
Listing the specimens taken in the Ross Sea Fishery in the list will allow export of these specimens without the need for export permits, until the date specified in Schedule 2. A link to the instrument to amend the list is accessible via the Department’s website at http://environment.gov.au/marine/fisheries/commonwealth/ross-sea.
The only effect of this instrument to amend the list is to extend the export approval for these two fisheries according to the notations 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 (see 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 (see section 14 of the Legislation Act 2003).
All Commonwealth legislation can be freely accessed via the Federal Register of Legislation (the Legislation Register) at https://www.legislation.gov.au/.
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.
Strategic assessment required – Commonwealth Eastern Tuna and Billfish Fishery
Subsection 303DC(1A) of the EPBC Act requires the Minister, in deciding whether to amend the list, to rely primarily on the outcomes of an assessment carried out for the purposes of Divisions 1 and 2 of Part 10 of the EPBC Act.
The Fishery was assessed under Part 10 of the EPBC Act in April 2011. That assessment concluded that actions approved or taken in accordance with the Eastern Tuna and Billfish Fishery Management Plan 2005, as amended by the Eastern Tuna and Billfish Fishery Management Plan 2010, would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area. Consequently, the management plan was accredited under section 33 of the EPBC Act.
In making a decision to amend the list, the Minister relied primarily on the outcomes of the 2011 assessment carried out for the purposes of Divisions 1 and 2 of the Part 10 of the EPBC Act.
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.
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 ETB 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.
AFMA has been consulted and supports amending the list to include product derived from the ETB Fishery.
The proposal to amend the list to include specimens from the ETB Fishery was advertised on the Department’s website and comment was invited from interested people for 22 business days from 16 May 2019 to 17 June 2019. Two public comments were received. All comments received were taken into account in the decision to include specimens derived from the ETB Fishery in the list. Public comments highlighted a number of issues requiring management attention, including that AFMA:
- Continue to monitor protected species interactions, particularly for marine turtles, seabirds, and cetaceans, and implement mitigation (e.g. closure if interactions exceed precautionary triggers) that supports recovery of populations affected by the fishery.
- Regularly review and monitor the performance of the monitoring program for the fishery, and implement improvements as required in a timely manner.
- Improve transparency through public reporting of protected species interactions, including management measures implemented if interaction rates exceed threat abatement plan triggers.
- Adhere to measures identified in conservation plans and policies that mitigate marine turtle and seabird interactions.
- Establish a marine turtle migration working group that includes relevant state and federal government agencies, and research and environmental organisations.
- Facilitate research or studies of marine turtle interactions, including spatial analyses by species, and data collection that quantifies post release mortality of live caught turtles.
- Revise ecological risk assessments to further quantify protected species interaction rates since the introduction of electronic monitoring.
- Introduce harvest strategy control rules (e.g. catch and effort limits, and decision support rules) for key byproduct (e.g. Mahi Mahi) and bycatch (e.g. conservation dependent sharks) species.
- Determine connectivity of yellowfin tuna stocks fished within Australian waters and across the western and central Pacific Ocean, and revise stock assessment and management settings appropriately.
- Maintain existing catch limits for bigeye tuna until more certainty is introduced to the Western and Central Pacific Fisheries Commission stock assessments for this species,
- Ensure catch limits enable target species stocks to rebuild above maximum sustainable yield in line with the harvest strategy policy for Commonwealth-managed fisheries.
- Independently verify electronic monitoring data by continuing to utilise human observers on a minimum number of fishing trips.
AFMA provided a response to public comments received. AFMA’s response described the measures already in place to mitigate and manage protected species interactions, and research initiatives, in collaboration with the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and the Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES), to better understand protected species interactions and connectivity for the primary species targeted by this fishery.
ABARES is undertaking a model-based analysis and review of electronic monitoring data to identify spatial and temporal trends in protected species interactions. CSIRO is researching the connectivity of highly migratory species targeted in this fishery. AFMA consider that fishing is consistent with the Commonwealth fisheries harvest strategy policy and guidelines. AFMA also advise that impacts to key byproduct and bycatch species are assessed and managed through the ecological risk assessment framework. The Tropical Tuna Management Advisory Committee and Tropical Tuna Resource Assessment Group provide the AFMA Commission with advice based on the most recent scientific and economic information in relation to the effects of fishing on target, bycatch, and protected species and the marine environment in which the fishery operates.
Strategic assessment not required – CCAMLR Ross Sea Exploratory Toothfish Fishery
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 FM Act or the Torres Strait Fisheries Act 1984 (Cth). The Ross Sea Fishery is managed by CCAMLR under the international treaty, Convention for the Conservation of Antarctic Marine Living Resources. The Ross Sea Fishery is 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 this fishery.
A strategic assessment may be made for other commercial fisheries under Division 1. There are no current strategic assessments in respect of the Ross Sea Fishery from which the specimens listed in Schedule 2 are taken or derived. However, operators are subject to federal laws in relation to interactions with protected species and ecological communities, and for impacts on the Commonwealth marine area.
Consultation
AFMA has been consulted and supports amending the list to include product derived from the Ross Sea Fishery.
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 – Commonwealth Eastern Tuna and Billfish Fishery and Commission for the Conservation of Antarctic Marine Living Resources Ross Sea Exploratory Toothfish Fishery, August 2019
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 and invertebrates taken in the Commonwealth Eastern Tuna and Billfish Fishery (the ETB Fishery) and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Ross Sea Exploratory Toothfish Fishery (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 as specified in Schedule 2.
Listing the specimens taken in the ETB Fishery in the list will allow the export of these specimens without the need for export permits, while an approved wildlife trade operation declaration for the fishery is in force. Links to the instrument to amend the list and the declaration are accessible via the Department’s website at http://environment.gov.au/marine/fisheries/commonwealth/eastern-tuna-billfish.
Listing the specimens taken in the Ross Sea Fishery in the list will allow export of these specimens without the need for export permits, until the date specified in Schedule 2. A link to the instrument to amend the list is accessible via the Department’s website at http://environment.gov.au/marine/fisheries/commonwealth/ross-sea.
The only effect of this instrument is to extend the export approval for these two fisheries according to the notations 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.
Nathan Sibley, Acting Assistant Secretary, Wildlife Trade and Biosecurity Branch (Delegate of the Minister for the Environment)