Amendment of List of Exempt Native Specimens – New South Wales Ocean Trawl Fishery, June 2024

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

Legislation au F2024L00835 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 Trawl 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 Trawl 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-trawl

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 Trawl 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 Trawl 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-trawl

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 native wildlife and ecosystems, particularly by regulating international trade to prevent overexploitation. The Act establishes a List of Exempt Native Specimens that exempts certain specimens from the trade control provisions that apply to regulated native specimens. Recently, amendments were made to this list to address the specific needs of the New South Wales Ocean Trawl Fishery. This legislative instrument, issued by the Delegate of the Minister for the Environment and Water, aims to delete from the list specimens derived from fish or invertebrates taken in the New South Wales Ocean Trawl Fishery, and to include these specimens in the list with certain conditions, thereby allowing their export without the need for export permits until 30 September 2024. This measure ensures continued export under specified conditions, facilitating compliance with ecological sustainability guidelines and supporting the fishery’s operations while maintaining ecological integrity.

Scope and Application

The F2024L00835 Amendment of List of Exempt Native Specimens – New South Wales Ocean Trawl Fishery, June 2024, pertains to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This legislative instrument aims to modify the List of Exempt Native Specimens by deleting certain specimens derived from fish or invertebrates taken in the New South Wales Ocean Trawl Fishery, along with any associated notations. Schedule 2 of the instrument incorporates specimens from the fishery into the list, subject to conditions that the specimens were taken lawfully and that they remain listed until 30 September 2024. The geographic scope of this amendment is national, as it pertains to a Commonwealth Act. The legislation applies to the entities and persons involved in the export of these specimens, ensuring compliance with the specified conditions. Notably, this amendment does not require a strategic assessment under the EPBC Act because the fishery is not managed under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984. Furthermore, specimens belonging to threatened species, migratory species, or marine species listed under the EPBC Act are excluded from the list, ensuring that the amendment adheres to the Act's provisions for conservation and sustainability.

Key Provisions

The key sections of this legislative instrument concern the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (section 303DB). This amendment specifically pertains to specimens derived from fish or invertebrates in the New South Wales Ocean Trawl Fishery. The instrument deletes certain specimens from the list (Schedule 1) and adds others with specific conditions (Schedule 2). These changes allow the export of these specimens without export permits until 30 September 2024, provided the specimens were taken lawfully (section 303DC(3)). The legislation is designed to facilitate the export of these specimens while ensuring they do not belong to endangered or protected species. The obligations imposed by this Act on the parties or entities it governs include ensuring that any specimens derived from the fishery and intended for export are taken lawfully. This means that the fishery must comply with all applicable laws and regulations concerning the capture and export of marine species. Additionally, entities must adhere to the conditions outlined in Schedule 2, which include the lawful taking of specimens and the time-limited inclusion of specimens in the list until 30 September 2024. Breaching the conditions outlined in this legislative instrument can result in various civil or criminal consequences. Although specific penalties are not detailed in the text, violations of the EPBC Act generally can lead to substantial fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as any additional provisions under related legislation. Entities found to be in breach of these conditions may also face administrative actions, such as the revocation of export permits or other trading rights. It is crucial for parties involved to comply fully with the stipulated conditions to avoid these potential repercussions.

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