Amendment of List of Exempt Native Specimens – Commonwealth Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 2019

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2019L01482 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 Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 2019

(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 export 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 and invertebrates taken in two Commonwealth fisheries, and any 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 same two Commonwealth fisheries, 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 declarations as approved wildlife trade operations are in place for these two fisheries as specified in Schedule 2.

The relevant fisheries are the:

  • Commonwealth Southern Bluefin Tuna Fishery, and
  • Commonwealth Western Tuna and Billfish Fishery

Listing these specimens in the list will allow the export of these specimens without the need for export permits, while the respective declarations as approved wildlife trade operations are in force for these fisheries. Links to the declarations are accessible via the following Department of the Environment and Energy’s (the Department) websites for these fisheries:

  • Southern Bluefin Tuna Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/southern-bluefin.
  • Western Tuna and Billfish Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/western-tuna-billfish.

The only effect of this instrument is to allow continued export for these specimens subject to the conditions provided in the notations 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 that 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 on the Federal Register of Legislation website 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 or 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 – Southern Bluefin Tuna Fishery

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 Southern Bluefin Tuna Fishery was assessed under Part 10 of the EPBC Act in February 2008. That assessment concluded that actions approved or taken in accordance with the Southern Bluefin Tuna Fishery Management Plan 1995, as amended by the Southern Bluefin Tuna Fishery Management Plan Amendment 2008 (No. 1), 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 September 2008.

In making a decision to accredit the management plan, the Minister relied primarily on the outcomes of the 2008 assessment carried out for the purposes of Divisions 1 and 2 of the Part 10 of the EPBC Act.

Strategic assessment – Western Tuna and Billfish Fishery

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 Western Tuna and Billfish Fishery was assessed under Part 10 of the EPBC Act in April 2006. That assessment concluded that actions approved or taken in accordance with the Western Tuna and Billfish Fishery Management Plan 2005, as amended by the Western Tuna and Billfish Fishery Management Plan Amendment 2006 (No. 1), 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 May 2007.

In making a decision to accredit the management plan, the Minister relied primarily on the outcomes of the 2006 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 Part 13 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 addition, the list must not include a specimen that belongs to taxa listed under section 209 of Part 13 of the EPBC Act (Australia’s List of Migratory Species). The List of Migratory Species includes all species considered to be native to Australian waters that are included in the appendices to the Bonn Convention, and all migratory bird species identified in 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 also must not include a specimen that belongs to taxa listed under section 248 of Part 13 of the EPBC Act (Australia’s List of Marine Species). The List of Marine Species includes all marine species identified at subsection 248(2) of the EPBC Act, and may include other species approved by the minister in consultation with the Threatened Species Scientific Committee.

In accordance with section 303CA of Part 13A 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 (AFMA) has been consulted and supports amending the list to include product derived from the two Commonwealth fisheries identified above.

In addition, interested persons were invited to comment on AFMA’s application and the proposal to amend the list to include specimens from these two Commonwealth fisheries as required by section 303FR of the EPBC Act.

For the Southern Bluefin Tuna Fishery, the application and the proposal was advertised on the Department’s website for 25 business days from 2 August 2019 until 9 September 2019. One public comment was received. All comments received were taken into account in the decision to include specimens derived from the fishery in the list of exempt native specimens. Public comments raised a number of concerns requiring management attention, including the:

  • Stock status for southern bluefin tuna remains well below that required to produce maximum sustainable yield.
  • Potential to limit the number of southern bluefin tuna that may grow to sexual maturity by capturing juvenile fish for ranching.
  • Improving cooperation between Indian Ocean Tuna Commission members and non-contracting parties to agree on quotas that promote sustainable fishing.
  • Better understand the impact on southern bluefin tuna stocks by the recreational fishing sector, including quantifying non-commercial catches.

For the Western Tuna and Billfish Fishery, the application and the proposal was advertised on the Department’s website for 26 business days from 12 August 2019 until 16 September 2019. No 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 – Commonwealth Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 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 two Commonwealth fisheries, and any 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 same two Commonwealth fisheries, 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 declarations as approved wildlife trade operations are in place for these two fisheries as specified in Schedule 2.

The relevant fisheries are the:

  • Commonwealth Southern Bluefin Tuna Fishery, and
  • Commonwealth Western Tuna and Billfish Fishery

Listing these specimens in the list will allow the export of these specimens without the need for export permits, while the respective declarations as approved wildlife trade operations are in force for these fisheries. Links to the declarations are accessible via the following Department of the Environment and Energy’s (the Department) websites for these fisheries:

  • Southern Bluefin Tuna Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/southern-bluefin.
  • Western Tuna and Billfish Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/western-tuna-billfish.

The only effect of this instrument is to allow continued export for these specimens subject to the conditions provided in the notations 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.

 

Nathan Sibley, Acting Assistant Secretary, Environment Approvals and Wildlife Trade Branch (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 and conservation of Australia’s native wildlife and ecosystems, including the regulation of international trade in native species to prevent overexploitation. This legislation addresses the problem of ensuring that the export of native specimens from Commonwealth fisheries is managed sustainably and in compliance with international obligations. Enacted by the Australian Parliament, the EPBC Act aims to balance the economic benefits of trade with the need to protect the environment and biodiversity. The purpose of this legislative instrument is to amend the list of exempt native specimens to include certain fish and invertebrate specimens from the Commonwealth Southern Bluefin Tuna Fishery and the Commonwealth Western Tuna and Billfish Fishery, subject to specific conditions and restrictions. This amendment allows for the export of these specimens without the need for export permits, provided that the fisheries maintain their status as approved wildlife trade operations. The instrument incorporates relevant Commonwealth acts and ensures that the amendments do not conflict with international agreements such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – Commonwealth Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 2019, applies to the specimens derived from fish and invertebrates taken in the specified Commonwealth fisheries. This amendment to the list of exempt native specimens under the EPBC Act allows for the export of these specimens without the need for export permits, subject to certain conditions. The geographic and jurisdictional reach of this legislation is at the Commonwealth level, where the Act regulates the international trade to protect targeted species against over-exploitation and to safeguard ecosystems. The instrument excludes specimens belonging to eligible listed threatened species, taxa listed under Australia’s List of Migratory Species, and taxa listed under Australia’s List of Marine Species. It also excludes specimens derived from taxa listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Act extends its application through subordinate instruments, incorporating relevant Commonwealth Acts and disallowable instruments as in force at the time of commencement. The instrument allows for the continued export of specimens from the specified fisheries, subject to the conditions outlined in Schedule 2, which require the specimens to have been taken lawfully and for the fisheries to maintain declarations as approved wildlife trade operations.

Key Provisions

This legislative instrument primarily concerns the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The amendments involve deleting certain specimens derived from the Commonwealth Southern Bluefin Tuna Fishery and the Commonwealth Western Tuna and Billfish Fishery from the list, along with any associated restrictions or conditions (Schedule 1). Additionally, Schedule 2 of the instrument includes specimens from these fisheries in the list, subject to specific conditions, namely that the specimens or the fish or invertebrates from which they are derived were taken lawfully and that the specimens are included in the list while declarations as approved wildlife trade operations are in place for these fisheries. The Act imposes obligations on parties involved in the export of specimens derived from these fisheries. These obligations include ensuring that the specimens or the fish or invertebrates from which they are derived were taken lawfully and that the export activities comply with the conditions set out in Schedule 2 of the instrument. The obligations also require adherence to the management plans for the Southern Bluefin Tuna Fishery and the Western Tuna and Billfish Fishery, which have been accredited under the EPBC Act. Violations of the provisions of this instrument may result in legal consequences. While specific offences, penalties, or consequences for breaches are not detailed in the instrument itself, it is important to note that breaches of the EPBC Act generally can attract criminal and civil penalties. Under the EPBC Act, individuals and entities can face fines, imprisonment, or both for breaches. The exact penalties depend on the nature and severity of the offence, and are determined by the courts. Furthermore, failure to comply with the conditions specified in Schedule 2, such as unlawful taking of specimens or exporting without the required declarations, could lead to enforcement actions by the relevant authorities, including potential cessation of export activities and legal proceedings.

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