Amendment of List of Exempt Native Specimens – Queensland Gulf of Carpentaria Inshore Fin Fish Fishery, December 2018

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2018L01734 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 – QUEENSLAND GULF OF CARPENTARIA INSHORE FIN FISH FISHERY, DECEMBER 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 the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery, as specified in Schedule 1. The instrument also includes specimens from the same fishery 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.

 

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 following state legislation website:

  • https://www.legislation.qld.gov.au (as of December 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 subject to the conditions provided in the notations specified in Schedule 2. The only effect of this amendment is to  clarify the description of taxon/items covered by the inclusion.

 

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 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 Queensland Department of Agriculture and Fisheries has been consulted and supports amending the list of exempt native specimens to include product derived from the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery. In addition, the proposal to amend the list of exempt native specimens was advertised on the Department of the Environment and Energy’s website and comment was invited from interested people for a period of 22 business days. All comments received were taken into account in the decision to include specimens derived from the fishery 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 – QUEENSLAND GULF OF CARPENTARIA INSHORE FIN FISH FISHERY, DECEMBER 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 the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery, as specified in Schedule 1. The instrument also includes specimens from the same fishery 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 clarify the description of taxon/items covered by the inclusion.

 

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 by the Parliament of Australia to address the protection of the nation's environment, particularly focusing on preventing significant impacts from developments and managing biodiversity. This Act allows for the establishment of a list of exempt native specimens, which are exempt from the trade control provisions applicable to regulated native specimens. In December 2018, an amendment to the list of exempt native specimens was introduced to clarify the descriptions of taxa and items covered by the inclusion, particularly those derived from the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery. This amendment was made to ensure that the specimens can be exported subject to specific conditions, aligning with the Australian Government’s Guidelines for the Ecologically Sustainable Management of Fisheries. The policy objective behind this amendment is to facilitate lawful trade while maintaining ecological sustainability and protecting threatened species.

Scope and Application

The F2018L01734 legislative instrument amends the Environment Protection and Biodiversity Conservation Act 1999 by modifying the list of exempt native specimens. Specifically, it removes certain specimens from the list of exempt native specimens taken in the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery, as detailed in Schedule 1, and adds others with specific conditions. These conditions include that the specimens, or the fish or invertebrate from which they are derived, must have been taken lawfully and that their inclusion in the list is temporary, expiring on the dates specified in Schedule 2. This amendment applies to entities and persons involved in the trade of native specimens within the scope of the EPBC Act, particularly those operating within the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery. The jurisdictional reach of this legislation is national, governed by the Commonwealth, and it interfaces with state laws as outlined in Schedule 2. The legislative instrument does not include specimens that are part of eligible listed threatened species unless specific conditions are met, nor does it include specimens derived from taxa listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The instrument is subject to consultation requirements as stipulated in section 303DC(3) of the EPBC Act and was open to public comment before finalisation. This legislative instrument commences the day after it is registered and is compatible with human rights, as it does not raise any human rights issues.

Key Provisions

The legislative instrument (F2018L01734) amends the list of exempt native specimens under Section 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, it removes certain specimens from the list of exempt native specimens taken in the Queensland Gulf of Carpentaria Inshore Fin Fish Fishery, as outlined in Schedule 1, and adds others to the list with specific conditions, as detailed in Schedule 2. Specimens included in this list are exempt from the trade control provisions that apply to regulated native specimens. The inclusion of these specimens in the list is subject to the condition that they were taken lawfully and are included in the list until the dates specified in Schedule 2. Additionally, specimens belonging to eligible listed threatened species and those 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 of exempt native specimens. The Act imposes several obligations on the parties and entities it governs. Firstly, the Minister for the Environment must consult with other relevant ministers, as well as other persons and organisations, before amending the list of exempt native specimens. Secondly, specimens included in the list must be taken lawfully, and their inclusion is conditional upon meeting the specified criteria. Thirdly, any specimens belonging to eligible listed threatened species or those listed under CITES are excluded from the list of exempt native specimens. Fourthly, the assessment of the ecological sustainability of the fishery’s management arrangements must comply with the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition’. Breach of the provisions of the EPBC Act can lead to various civil and criminal consequences. While the explanatory statement does not specify maximum penalties, breaches of the Act can result in substantial fines and, in severe cases, imprisonment. The specific penalties depend on the nature and severity of the breach, as outlined in the EPBC Act. Additionally, failure to comply with the conditions attached to the inclusion of specimens in the list of exempt native specimens can result in the specimens being subject to trade control provisions, thereby affecting their exportability. The Act ensures that the management and trade of native specimens are conducted in a manner that is ecologically sustainable and compliant with both national and international conservation standards.

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