Amendment of List of Exempt Native Specimens – New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, July 2023

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

Legislation au F2023L01043 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Environment Protection and Biodiversity Conservation Act 1999

Amendment of List of Exempt Native Specimens – New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, July 2023

(Issued by the authority of the delegate of the Minister for the Environment and Water 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 include in the list specimens that are or are derived from Ecklonia radiata taken from the New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery (the fishery), with notations that inclusion of the specimens in the list are subject to restrictions or conditions that the specimen, or the E. radiata from which it is derived, was taken lawfully, and that the specimens are included in the list until the date specified in Schedule 1.  

Listing these specimens in the list will allow export of these specimens without the need for export permits, until the dates specified in Schedule 1. A link to the instrument is accessible via the Department of Climate Change, Energy, the Environment and Water (the Department) website at Southern Cross Botanicals – Sea Kelp - DCCEEW.

The only effect of this instrument is to allow export for these specimens’ subject to the conditions provided in the notation as specified in the Schedule 1.

Incorporation

All state and territory legislation referred to in Schedule 1 to the instrument is incorporated as in force at the time this instrument commences. All state and territory legislation incorporated by reference in the instrument can be freely accessed at: New South Wales legislation at www.legislation.nsw.gov.au (as of July 2023).

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 – www.legislation.nsw.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 Schedule 1 are taken or derived.

The fishery listed in Schedule 1 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 Schedule 1.

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.

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.

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 fishery’s 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 New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery.

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 – New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, July 2023

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 include in the list specimens that are or are derived from Ecklonia radiata taken in New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery (the fishery), with notations that inclusion of the specimens in the list are subject to restrictions or conditions that the specimen, or the E. radiata from which it is derived, was taken lawfully, and that the specimens are included in the list until the date specified in Schedule 1.

Listing these specimens in the list will allow export of these specimens without the need for export permits, until the date specified in Schedule 1. A link to the instrument is accessible via the Department of Climate Change, Energy, the Environment, and Water’s (the Department’s) website at: Southern Cross Botanicals – Sea Kelp - DCCEEW. 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 1.

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, Branch Head, Oceans and Wildlife Branch
(Delegate of the Minister for the Environment and Water)

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to address the need for comprehensive regulation of activities that may have significant environmental impacts, particularly those involving the trade and conservation of native species. The Act establishes a framework for the protection and conservation of Australia’s native wildlife, focusing on regulating international trade to prevent over exploitation and to safeguard both Australian and international ecosystems. One of its key provisions is the establishment of a list of exempt native specimens, which allows for the export of certain specimens without the need for export permits, subject to specific conditions. The legislative instrument introduced in July 2023 amends this list to include specimens from the New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, facilitating their export while ensuring compliance with legal and sustainability criteria. This amendment was made under the authority of the Minister for the Environment and Water, and the decision to include these specimens was informed by guidelines for the ecologically sustainable management of fisheries, as well as consultations with relevant stakeholders.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) Amendment of List of Exempt Native Specimens – New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, July 2023, aims to incorporate specimens of Ecklonia radiata taken from the New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery into the list of exempt native specimens. This legislative instrument exempts these specimens from the trade control provisions applicable to regulated native specimens, thereby permitting their export without the need for export permits, subject to specific conditions detailed in Schedule 1. This exemption is valid until the date specified in Schedule 1. The instrument applies to the Commonwealth, with state and territory legislation incorporated as in force at the time of commencement. Notably, this amendment does not require a strategic assessment as the fishery is not managed by the Commonwealth under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984. Instead, it relies on the Offshore Constitutional Settlement arrangements, which mandate each jurisdiction’s responsibilities for managing fisheries resources. The inclusion in the list is subject to the conditions that the specimens were taken lawfully and that they do not belong to species listed under categories such as extinct, critically endangered, or migratory species under the EPBC Act.

Key Provisions

The main operative sections of the Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, July 2023 (F2023L01043) involve the addition of specimens derived from Ecklonia radiata taken from the New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery to the list of exempt native specimens (section 303DB). These specimens are exempt from the trade control provisions that apply to regulated native specimens. This exemption is subject to conditions that the specimens were taken lawfully and are included in the list only until the date specified in Schedule 1. The listing of these specimens allows for their export without the need for export permits until the dates specified in Schedule 1. The instrument incorporates relevant state and territory legislation as in force at the time of commencement, as well as Commonwealth Acts and disallowable instruments as in force from time to time or at the time of commencement, depending on their status under the Legislation Act 2003. The obligations and requirements imposed by the Act on the parties or entities it governs include ensuring that specimens included in the list of exempt native specimens meet the specified conditions. This involves verifying that the specimens were taken lawfully and are not derived from species listed as eligible listed threatened species, species listed on Australia’s List of Migratory Species, or species listed on the List of Marine Species, unless specific conditions are satisfied. Additionally, 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 Act also mandates consultation with relevant Commonwealth ministers, state and territory ministers, and other persons or organisations as deemed appropriate before amending the list. The Act includes provisions for offences, penalties, or civil/criminal consequences for breach. While the Act itself does not specify maximum penalties for breaches related to the inclusion of specimens in the list of exempt native specimens, breaches of other provisions under the Environment Protection and Biodiversity Conservation Act 1999 can result in substantial penalties. For instance, unauthorised trade in protected species can lead to penalties that include substantial fines and imprisonment. It is essential for entities involved in the export of these specimens to adhere strictly to the conditions and requirements outlined in the Act to avoid any legal repercussions.

Legal classification tags

Area of Law
Environmental Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Listing & Exemptions
Export Control

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.