Amendment of List of Exempt Native Specimens – New South Wales Sea Urchin and Turban Shell Restricted Fishery and Commonwealth Small Pelagic Fishery, October 2018

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2018L01460 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 Sea Urchin and Turban Shell Restricted Fishery and Commonwealth Small Pelagic Fishery, October 2018

in accordance with Section 303DC

 

Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the establishment of a list of exempt native specimens. Specimens included in the list are exempt from the trade control provisions that apply to regulated native specimens.

 

The effect of this instrument is to delete specimens from the list of exempt native specimens taken in two fisheries specified in Schedule 1. The instrument also includes specimens from the same two fisheries in the list of exempt native specimens, 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 the dates specified in Schedule 2.

 

The relevant fisheries are as follows:

  • New South Wales Sea Urchin and Turban Shell Restricted Fishery
  • Commonwealth Small Pelagic Fishery

 

All state legislation referred to in Schedule 2 to the instrument is incorporated as in force at the time this instrument commences. All state legislation incorporated by reference in the instrument can be freely accessed on the New South Wales legislation website at https://www.legislation.nsw.gov.au/#/ (as of October 2018).

 

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/.

 

Listing of the specimens described above in the list of exempt native specimens will allow export of these specimens until the dates specified in Schedule 2. The only effect of this instrument is to amend the specified dates.

 

A strategic assessment under the provisions of Part 10 of the EPBC Act is only required for fisheries managed under the Fisheries Management Act 1991 (Cwth) or the Torres Strait Fisheries Act 1984 (Cwth). 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/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. The Small Pelagic Fishery was assessed under Part 10 of the EPBC Act in August 2009.

 

The list of exempt native specimens 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 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 specimens.

 

In determining to include the specimens in the list of exempt native specimens regard was had to the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition.' Those Guidelines establish the criteria for assessment of the ecological sustainability of the relevant fishery’s management arrangements.

 

Subsection 303DC(3) of the EPBC Act provides that before amending the list, the Minister for the Environment 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 and the Australian Fisheries Management Authority have been consulted and support amending the list of exempt native specimens to include product derived from the New South Wales Sea Urchin and Turban Shell Restricted Fishery and the Commonwealth Small Pelagic Fishery, respectively. In addition, the proposals to amend the list of exempt native specimens were advertised on the Department of the Environment and Energy’s website and comment was invited from interested people for periods of at least 20 business days. All comments received were taken into account in the decision to include specimens derived from these fisheries 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 FOR A BILL OR LEGISLATIVE INSTRUMENT THAT DOES NOT RAISE ANY HUMAN RIGHTS ISSUES

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 Sea Urchin and Turban Shell Restricted Fishery and Commonwealth Small Pelagic Fishery, October 2018

 

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 effect of this instrument is to delete specimens from the list of exempt native specimens taken in two fisheries specified in Schedule 1. The instrument also includes specimens from the same two fisheries in the list of exempt native specimens, 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 the dates specified in Schedule 2.

 

The only effect of this instrument is to extend the export approval until the dates 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.

 

Paul Murphy, Assistant Secretary, Wildlife Trade and Biosecurity Branch (Delegate of the Minister for the Environment)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This legislative instrument, F2018L01460, is an amendment to the list of exempt native specimens under the EPBC Act, introduced by the Parliament of Australia. This amendment aims to adjust the export approval dates for certain specimens derived from the New South Wales Sea Urchin and Turban Shell Restricted Fishery and the Commonwealth Small Pelagic Fishery. The policy objective is to align the export provisions with the ecological sustainability guidelines and to ensure compliance with both state and federal laws governing fisheries management. The amendment was made following consultations with relevant stakeholders and public consultation, ensuring that the changes are in line with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries.

Scope and Application

The legislative instrument amends the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It specifically pertains to specimens taken from the New South Wales Sea Urchin and Turban Shell Restricted Fishery and the Commonwealth Small Pelagic Fishery. The primary application of this instrument is to delete certain specimens from the list of exempt native specimens and to add others with specific conditions. These conditions include that the specimens or the fish or invertebrates from which they are derived must be taken lawfully and that their inclusion in the list is valid until specified dates outlined in Schedule 2. The instrument also ensures that specimens belonging to eligible listed threatened species or those listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are not included in the list unless certain conditions are met. This legislative instrument operates under the Commonwealth jurisdiction and is consistent with the Offshore Constitutional Settlement (OCS) arrangements that delineate the responsibilities of the Australian Government and State/Northern Territory governments for managing fisheries resources. The instrument is compatible with human rights as it does not raise any human rights issues, aligning with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The operative sections of this legislative instrument under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) primarily involve the amendment of the list of exempt native specimens (sections 303DB and 303DC). Section 303DC allows the Minister for the Environment to amend the list of exempt native specimens by legislative instrument. This amendment involves deleting certain specimens from the list of exempt native specimens for two specific fisheries (New South Wales Sea Urchin and Turban Shell Restricted Fishery and Commonwealth Small Pelagic Fishery) and adding them back with specific conditions and restrictions (section 303DC(3)). These amendments are subject to the consultation process outlined in the EPBC Act, which requires the Minister to consult with relevant ministers and stakeholders before making any changes. The obligations and requirements imposed by this legislation include ensuring that any specimens included in the list of exempt native specimens are taken lawfully and comply with both state and federal laws. For the New South Wales Sea Urchin and Turban Shell Restricted Fishery and the Commonwealth Small Pelagic Fishery, this means specimens can only be exported if they meet the criteria specified in Schedule 2. Furthermore, specimens belonging to eligible listed threatened species under the EPBC Act are not to be included unless specific conditions are met (section 303DB(6)). Specimens derived from taxa listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are also excluded from the list (section 303CA). The process of amending the list must also adhere to the consultation requirements set out in the EPBC Act, which include public advertising and consideration of any comments received. Breach of the provisions outlined in this legislative instrument can result in various civil and criminal consequences. While specific offences and penalties are not detailed in the explanatory statement, violations of the EPBC Act generally can lead to substantial fines and, in severe cases, imprisonment. For example, unauthorised trade in native specimens can result in fines of up to $222,200 for individuals and $1,111,100 for bodies corporate, along with potential imprisonment terms. The maximum penalties are stipulated in the EPBC Act and can vary depending on the nature and severity of the breach. Additionally, any failure to comply with the specified conditions for the inclusion of specimens in the list of exempt native specimens can lead to enforcement actions by relevant authorities, including potential legal proceedings.

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