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Amendment of List of Exempt Native Specimens – Queensland Sea Cucumber Fishery (East Coast), December 2021

Amendment of List of Exempt Native Specimens – Queensland Sea Cucumber Fishery (East Coast), December 2021

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

Legislation au F2021L01701 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 Sea Cucumber Fishery

(East Coast), December 2021

(Issued by 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 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 Queensland Sea Cucumber Fishery (East Coast), and any and notations specified in Schedule 1 to the instrument.

Schedule 2 to the instrument also includes in the list specimens that are or are taken from fish or invertebrates taken from the same Queensland Sea Cucumber Fishery (East Coast) identified above, 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, as specified in Schedule 2.

Listing these specimens in the list will allow the export of these specimens without the need for export permits, while an approved Wildlife Trade Operation declaration for the Fishery is in force. A link to the declaration is accessible via the Department of Agriculture, Water and the Environment’s (the Department) website at: https://www.environment.gov.au/marine/fisheries/qld/sea-cucumber.

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

All state and territory legislation referred to in Schedule 2 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 the following website: https://www.legislation.qld.gov.au (as of December 2021).

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 Schedule 2 are taken or derived.

The fishery listed in Schedule 2 to the instrument are 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 2.

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 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.

The guidelines are accessible via the Department of Agriculture, Water and the Environment’s website at: https://www.awe.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 Queensland Department of Agriculture and Fisheries has been consulted and supports amending the list to include product derived from the Queensland Sea Cucumber Fishery (East Coast).

In addition, the proposal to amend the list was advertised on the department’s website and comment was invited from interested people for 26 business days from 5 August 2021 until 9 September 2021.

All comments received were taken into account in the decision to include specimens derived from the fishery in the list.

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 – Queensland Sea Cucumber Fishery

(East Coast) December 2021

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

Schedule 2 to the instrument also includes in the list specimens that are or are derived from fish or invertebrates taken from the same Queensland Sea Cucumber Fishery (East Coast), 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 a declaration as an approved Wildlife Trade Operation is in place for the Fishery as specified in Schedule 2.

Listing these specimens in the list will allow the export of these specimens without the need for export permits. A link to the declaration is accessible via the Department of Agriculture, Water and the Environment’s website at https://www.environment.gov.au/marine/fisheries/qld/sea-cucumber.

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.

Sussan Ley, Minister for the Environment

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted by the Parliament of Australia to protect and conserve Australia’s native wildlife and ecosystems. It aims to regulate international trade in native specimens to prevent over-exploitation of targeted species. One specific amendment to the Act, F2021L01701, was introduced to address the need for streamlined export processes for specimens derived from the Queensland Sea Cucumber Fishery (East Coast). This amendment, issued by the Minister for the Environment, deletes certain specimens from the list of exempt native specimens and includes others subject to specific conditions. The policy objective of this amendment is to facilitate the export of these specimens without the need for export permits, provided that they are taken lawfully and an approved Wildlife Trade Operation declaration is in force for the fishery. This legislative instrument is compatible with human rights as it does not engage any of the applicable rights or freedoms.

Scope and Application

The F2021L01701 Amendment of List of Exempt Native Specimens – Queensland Sea Cucumber Fishery (East Coast), December 2021, amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by modifying the list of exempt native specimens. This amendment applies specifically to specimens derived from fish or invertebrates harvested in the Queensland Sea Cucumber Fishery (East Coast). The Act exempts these specimens from the trade control provisions applicable to regulated native specimens, provided they meet certain conditions, such as being taken lawfully and with an approved Wildlife Trade Operation declaration in place. The geographic scope of this legislation is national, as it pertains to the Commonwealth's obligations under the EPBC Act to protect native wildlife and regulate international trade. The amendment does not apply to specimens belonging to eligible listed threatened species, species listed on Australia's List of Migratory Species, the List of Marine Species, or those derived from taxa listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The instrument incorporates relevant state and territory legislation and operates under the Offshore Constitutional Settlement arrangements, ensuring that while the fishery is managed by the state, federal laws apply to interactions with protected species and ecological communities. This legislative instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Key Provisions

The main operative sections of the legislation, as provided in the explanatory statement, pertain to the amendment of the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DB of the EPBC Act governs the establishment of this list, which exempts certain native specimens from the trade control provisions that apply to regulated native specimens (Section 303DB(1)). The instrument amends the list by deleting specimens taken from the Queensland Sea Cucumber Fishery (East Coast) as detailed in Schedule 1 and adding new specimens subject to certain conditions in Schedule 2 (Section 303DC). This change is aimed at allowing the export of these specimens without the need for export permits while an approved Wildlife Trade Operation declaration is in force (Section 303DC(1A)). The obligations and requirements imposed by this Act on the parties or entities it governs include ensuring that specimens derived from the Queensland Sea Cucumber Fishery (East Coast) comply with the conditions specified in the notations of Schedule 2. These conditions require that the specimens or the fish or invertebrates from which they are derived were taken lawfully. Furthermore, the inclusion of these specimens in the list is contingent on the presence of an approved Wildlife Trade Operation declaration for the fishery, which must be accessible via the Department of Agriculture, Water and the Environment’s website (Section 303DC). Additionally, the Act mandates consultation with relevant state ministers and stakeholders before amending the list (Section 303DC(3)). The legislation does not explicitly state any offences, penalties, or consequences for breach; however, any failure to comply with the conditions outlined in Schedule 2 could potentially lead to the revocation of the approved Wildlife Trade Operation declaration, thereby reinstating the need for export permits for the specimens in question. There are also broader implications under the EPBC Act for any illegal trade of protected species, which could lead to criminal and civil penalties. These may include substantial fines and imprisonment, as outlined in the general provisions of the EPBC Act and other related legislation. The specific penalties would depend on the nature and severity of the breach, as determined by the courts.

Area of Law: Environmental Law
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Enforcement Powers; Reporting & Disclosure Obligations

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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.

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