EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Amendment of List of Exempt Native Specimens – Commonwealth North West Slope Trawl Fishery and Western Deepwater Trawl Fishery, December 2020
(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 the 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 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:
- Commonwealth North West Slope Trawl Fishery and Western Deepwater Trawl 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:
- North West Slope Trawl Fishery and Western Deepwater Trawl Fishery webpage at http://www.environment.gov.au/marine/fisheries/commonwealth/western-trawl.
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 – Commonwealth North West Slope Trawl Fishery and Western Deepwater Trawl 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 North West Slope Trawl Fishery and Western Deepwater Trawl Fishery (commonly referred to as the ‘Western Trawl Fisheries’) are managed under the same set of management arrangements (Western Trawl Fisheries Statement of Management Arrangements) which were assessed under Part 10 of the EPBC Act in November 2005. That assessment concluded that actions approved or taken in accordance with the Western Trawl Fisheries Statement of Management Arrangements 2004 (the management plan), would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area. Therefore, the management plan was accredited under Part 13 of the EPBC Act in September 2005.
In 2012 an amendment was made to the management plan (Western Trawl Fisheries Statement of Management Arrangements 2012). In November 2012 the management plan was reassessed and found that it would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area and was accredited under Part 13 of the EPBC Act.
Due to changes made the Fisheries Management Act in 2019, the management plan will be accredited under Part 13 of the EPBC Act in December 2020.
In making a decision to accredit the management plan, the Minister relied primarily on the outcomes of the 2005 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 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 the Commonwealth fisheries as required by section 303FR of the EPBC Act.
For the North West Slope Trawl Fishery and Western Deepwater Trawl Fishery, the application and the proposal were advertised on the Department’s website for 22 business days from 2 November 2020 until 2 December 2020. 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 North West Slope Trawl Fishery and Western Deepwater Trawl Fishery, December 2020
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:
- North West Slope Trawl Fishery and Western Deepwater Trawl 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:
- North West Slope Trawl Fishery and Western Deepwater Trawl Fishery webpage at http://www.environment.gov.au/marine/fisheries/commonwealth/western-trawl.
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.
Laura Timmins, Senior Director, Wildlife Trade Office (Delegate of the Minister for the Environment)