Amendment of List of Exempt Native Specimens – New South Wales Ocean Trap and Line Fishery, June 2024

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

Legislation au F2024L00836 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 – New South Wales Ocean Trap and Line Fishery, June 2024

(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 New South Wales Ocean Trap and Line 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 until 30 September 2024 as specified in Schedule 2.

Listing these specimens in the list will allow the export of these specimens without the need for export permits until 30 September 2024. A link to the relevant information is accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: https://www.dcceew.gov.au/environment/marine/fisheries/nsw/ocean-trap

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 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 fishery from which the specimens listed in the Schedule are taken or derived.

The fishery listed in the Schedule to the instrument 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 the fishery named in the Schedule.

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 of exempt native species.

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 fisheries’ management arrangements.

The guidelines are accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: 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 New South Wales Department of Primary Industries has been consulted and supports amending the list to include product derived from the fishery.

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

This instrument commences on 1 July 2024.

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 – New South Wales Ocean Trap and Line Fishery, June 2024

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 New South Wales Ocean Trap and Line 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 until 30 September 2024 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, until 30 September 2024. A link to the relevant information is accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: https://www.dcceew.gov.au/environment/marine/fisheries/nsw/ocean-trap

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.

Belinda Jago, 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 framework for the protection of Australia's biodiversity through the regulation of activities that may have a significant impact on listed threatened species, their habitats, and ecological communities. This legislation aims to ensure the conservation of native species and ecosystems by controlling the international trade of native specimens and preventing over-exploitation. The Act was introduced to address the need for a comprehensive national approach to environmental protection, integrating biodiversity conservation with sustainable development. The Parliament of Australia enacted the EPBC Act, which empowers the Minister for the Environment and Water to establish a List of Exempt Native Specimens to manage the export of native species, thereby protecting endangered species and maintaining ecological sustainability. This legislative instrument amends the List of Exempt Native Specimens under the EPBC Act to remove certain specimens derived from the New South Wales Ocean Trap and Line Fishery and to include others with specific conditions. The purpose of this amendment is to facilitate the export of these specimens without the need for export permits, subject to conditions ensuring the specimens were taken lawfully, until 30 September 2024. The instrument is designed to maintain the ecological sustainability of the fishery while allowing continued trade, and it has been developed in consultation with relevant stakeholders. This amendment ensures that the export of these specimens complies with national and international conservation standards, reflecting the policy objective of balancing economic activities with environmental protection.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – New South Wales Ocean Trap and Line Fishery, June 2024 instrument amends the List of Exempt Native Specimens under the EPBC Act to allow the export of specimens derived from fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery without the need for export permits, subject to specific conditions, until 30 September 2024. The Act applies to the Commonwealth and the New South Wales Ocean Trap and Line Fishery, specifically targeting the export of native specimens derived from this fishery. The geographic reach of this amendment is national, as it pertains to the Commonwealth's regulation of international trade under the EPBC Act. This amendment excludes specimens belonging to eligible listed threatened species, species listed on Australia's List of Migratory Species, or species listed on the List of Marine Species, as well as specimens derived from taxa listed under CITES. The instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms, as confirmed in the Statement of Compatibility with Human Rights. This legislative instrument is effective from 1 July 2024.

Key Provisions

The main operative sections of this instrument under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) involve amendments to the List of Exempt Native Specimens. Specifically, Section 303DB is concerned with the establishment of this list, while Schedule 1 and Schedule 2 detail the specimens to be removed and added to the list respectively. This legislative instrument seeks to delete specimens that are or are derived from fish or invertebrates taken in the New South Wales Ocean Trap and Line Fishery, and to add these specimens back into the list with certain conditions and notations until 30 September 2024. This change will allow for the export of these specimens without the need for export permits, subject to the conditions specified in Schedule 2. The Act imposes several obligations on parties involved. Firstly, the Minister, in deciding whether to amend the list, must consult with relevant Commonwealth ministers, state ministers, and other persons or organisations deemed appropriate. Additionally, the specimens included in the list must not belong to any eligible listed threatened species, species listed on Australia’s List of Migratory Species, or species listed on the List of Marine Species. Furthermore, specimens 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. The minister’s delegate must also consider the Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition when determining whether to include the specimens in the list. There are potential civil and administrative consequences for breaches of the conditions outlined in Schedule 2. While specific penalties are not mentioned in the text, breaches of the EPBC Act generally can result in substantial fines and, in severe cases, imprisonment. The exact penalties depend on the nature and severity of the breach, but they are designed to enforce compliance with the Act’s requirements to protect native wildlife and ecosystems. The Act also provides for the possibility of legal action being taken against individuals or entities that fail to comply with its provisions, further reinforcing the seriousness of adhering to the stipulated conditions and restrictions.

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