Amendment of List of Exempt Native Specimens – Commonwealth Eastern Tuna and Billfish Fishery, August 2022

Administered by Department of Climate Change, Energy, the Environment and Water

Legislation au F2022L01090 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Environment Protection and Biodiversity Conservation Act 1999

Amendment of List of Exempt Native Specimens – Commonwealth Eastern Tuna and Billfish Fishery, August 2022

(Issued by the authority of the delegate of the Minister for the Environment and Water 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 fishery), and any associated 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 fishery, 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 while a declaration as an approved wildlife trade operation is in place for the fishery as specified in Schedule 2.

Listing these specimens 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. A link to the declaration is accessible via the Department of Climate Change, Energy, the Environment and Water’s (the department) website at: https://www.dcceew.gov.au/environment/marine/fisheries/commonwealth/eastern-tuna-billfish.

The only effect of this instrument is 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/.

Strategic assessment

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 and 2 of Part 10 of the EPBC Act.

The fishery was assessed under Part 10 of the EPBC Act in August 2014. That assessment concluded that actions approved or taken in accordance with 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 accredit the management plan, the minister relied primarily on the outcomes of the 2014 assessment carried out for the purposes of Divisions 1 and 2 of 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 of exempt native specimens, 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 listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are not included in the list of exempt native specimens.

Assessment of specimens

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

The guidelines are accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: https://www.dcceew.gov.au/environment/marine/publications/guidelines-ecologically-sustainable-management-fisheries.

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 (AFMA) has been consulted and supports amending the list to include product derived from the fishery.

In addition, the proposal to amend the list was advertised on the department’s website and comment was invited from interested people for 23 business days from 2 May 2022 to 3 June 2022.

One public comment was received on the submission. The public comment raised concerns about the fishery’s mitigation of impacts on protected species, particularly turtles, seabirds and sharks. Concern was raised over the Ecological Risk Assessment data period, particular that it is from operations prior to the implementation of electronic monitoring. Concern over vessel-based mitigation approaches was also raised, particularly about individual accountability with seabird management.

All comments received were taken into account in the decision to include specimens derived from the fishery in the list of exempt native specimens. 

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, August 2022

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 in the Commonwealth Eastern Tuna and Billfish Fishery (the fishery), and any associated notations, associated restrictions or conditions 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 fishery, 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 while a declaration as an approved wildlife trade operation is in place for the fishery as specified in Schedule 2.

Listing these specimens in the list will allow the export of these specimens without the need for export permits, subject to the conditions specified in the notations of Schedule 2, while an approved wildlife trade operation declaration for the fishery is in force. A link to the declaration is accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: https://www.dcceew.gov.au/environment/marine/fisheries/commonwealth/eastern-tuna-billfish.

The only effect of this instrument is 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.

Declan O’Connor-Cox, Delegate of the Minister for the Environment and Water

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide a comprehensive framework for the protection and conservation of Australia's native wildlife, including regulating international trade to prevent over-exploitation and protect ecosystems. The Act was introduced by the Australian Parliament to address the gap in the regulation of international trade of native specimens and to provide a mechanism for assessing the environmental impact of actions that may affect listed threatened species, ecological communities, and heritage places. In August 2022, an amendment was made to the List of Exempt Native Specimens under the EPBC Act to include specimens from the Commonwealth Eastern Tuna and Billfish Fishery, subject to certain conditions to ensure the specimens were taken lawfully and while a declaration as an approved wildlife trade operation is in place for the fishery. The purpose of this amendment is to allow continued export of these specimens without the need for export permits, subject to the conditions specified in the notations of the instrument. The instrument was issued by the delegate of the Minister for the Environment and Water, as specified in the enabling legislation, with the policy objective of allowing the export of these specimens while ensuring the protection of targeted species against over-exploitation and the preservation of Australian and international ecosystems.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – Commonwealth Eastern Tuna and Billfish Fishery, August 2022 amends the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999. The Act applies to fish and invertebrate specimens derived from the Commonwealth Eastern Tuna and Billfish Fishery. This legislative instrument seeks to facilitate the export of these specimens without the need for export permits, subject to the conditions specified in Schedule 2, while an approved wildlife trade operation declaration for the fishery is in force. The instrument incorporates relevant Commonwealth Acts and disallowable instruments, and references to Commonwealth instruments exempt from disallowance are incorporated as in force at the time this instrument commences. The amendment process involved consultation with the Australian Fisheries Management Authority, and a public comment period was provided to gather feedback on the proposal. The instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Key Provisions

The main operative sections of the legislation, the Amendment of List of Exempt Native Specimens – Commonwealth Eastern Tuna and Billfish Fishery, August 2022, focus on the management of the export of fish and invertebrate specimens derived from the Commonwealth Eastern Tuna and Billfish Fishery. Under Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the legislation provides for the establishment of a list of exempt native specimens, which are exempt from trade control provisions applicable to regulated native specimens. This particular instrument amends this list by deleting specimens derived from the fishery and re-listing them with specific notations (Schedule 2), allowing for their export without the need for export permits, provided certain conditions are met. The obligations imposed by this Act on the parties involved primarily revolve around ensuring compliance with the conditions attached to the specimens listed in Schedule 2. This includes adherence to the lawful taking of fish and invertebrates, as well as the maintenance of an approved wildlife trade operation declaration for the fishery. Such obligations ensure that the export of these specimens does not negatively impact the sustainability of the fishery or the conservation of marine biodiversity. Breaches of the conditions specified in the notations of Schedule 2 can result in significant legal consequences. While the specific offences and penalties are not detailed in the text provided, the general framework of the EPBC Act implies that violations could lead to administrative penalties, fines, and potential criminal charges, particularly if such breaches contribute to environmental harm or the illegal trade of endangered species. The maximum penalties for such offences would typically align with the severity of the breach and the specific provisions of the EPBC Act, which could include substantial fines and imprisonment terms.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.