EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Amendment of List of Exempt Native Specimens – Commonwealth Southern and Eastern Scalefish and Shark Fishery, February 2019
(Issued by the authority of the delegate to 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 remove from the list specimens that are or are derived from fish or invertebrates taken in the Commonwealth Southern and Eastern Scalefish and Shark Fishery (the fishery), and notations as 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 the Environment and Energy’s (the Department) website at http://environment.gov.au/marine/fisheries/commonwealth/scalefish.
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 303DB(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 the Part 10 of the EPBC Act.
The fishery was assessed under Part 10 of the EPBC Act in May 2007. That assessment concluded that actions approved or taken in accordance with the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003, as amended by the Southern and Eastern Scalefish and Shark Fishery Management Plan Amendment 2006 (No. 2), 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 2007 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 of exempt native specimens, subject to the conditions provided in the notation.
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 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 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 (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 11 October 2018 to 13 November 2018.
Two public comments were received. All comments received were taken into account in the decision to include specimens derived from the fishery in the list. Public comments highlighted the following issues requiring management attention, including that AFMA:
- Revise and update bycatch and discard work plans and strategies for all sectors of the Fishery to address the impact of fishing on high risk and protected species,
- Continue to manage marine debris, compliance, data reporting, and protected species interactions by further developing cross-jurisdictional management arrangements, and using an appropriate level of independent human observers,
- Continue to monitor the effects of fishing on species and the marine environment, review risk management strategies, and work towards implementing appropriate management measures in consultation with key stakeholders,
- Work towards finalising the harvest strategy for the fishery, and implement appropriate measures to ensure that all species are fished sustainably, and
- Facilitate ongoing research, particularly in areas identified as high risk for impacts on protected species and the marine environment in which the fishery operates
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 – Southern and Eastern Scalefish and Shark Fishery, February 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 remove from the list specimens that are or are derived from fish or invertebrates taken in the Commonwealth Southern and Eastern Scalefish and Shark Fishery (the fishery), and notations as 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’s website at http://environment.gov.au/marine/fisheries/commonwealth/scalefish.
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.
John Gibbs, Assistant Secretary, Wildlife Trade and Biosecurity Branch (Delegate of the Minister for the Environment)