Amendment of List of Exempt Native Specimens – South Australian Beach-cast Marine Algae Fishery, September 2024

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

Legislation au F2024L01150 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 – South Australian Beach-cast Marine Algae Fishery, September 2024

(Issued by the authority of the Delegate of the Minister for the Environment and Water as 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 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 South Australian Beach-cast Marine Algae Fishery (the fishery), and any associated notations 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 SA Beach-cast Marine Algae Fishery, with notations that inclusion of the specimens in the list are subject to restrictions or conditions that:

  • the specimen, or the marine vegetation from which it is derived, was taken lawfully;
  • the Department of Primary Industries and Regions South Australia must inform the Department of Climate Change, Energy, the Environment and Water of any intended material changes to the South Australian Beach-cast Marine Algae Fishery management arrangements that may affect this approval;
  • the Department of Primary Industries and Regions South Australia must inform the Department of Climate Change, Energy, the Environment and Water of any intended changes to fisheries legislation that may affect the legislative instruments relevant to this approval;
  • the Department of Primary Industries and Regions South Australia must provide the Department of Climate Change, Energy, the Environment and Water with an annual report by 17 September each year detailing any changes in the fishery; and
  • the specimens are included in the list until 17 September 2034.

 

 

 

Listing these specimens in the list will allow the export of these specimens without the need for export permits until the date specified in Schedule 2.

A link to the instrument is accessible via the Department of Climate Change, Energy, the Environment and Water’s (the department) website at https://www.dcceew.gov.au/environment/marine/fisheries/sa/seagrass

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 South Australian Legislation - https://www.legislation.sa.gov.au/ (as of August 2024).

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 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 2.

The Australian Government and state and 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 the Northern Territory 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 of exempt native species.

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 Department of Primary Industries and Regions South Australia has been consulted and supports amending the list to include product derived from the fishery.

In addition, the proposal to amend the list was advertised on the department’s website and comment was invited from interested people for 22 business days from 6 May 2024 to 5 June 2024 (excludes first day and public holidays). One comment was received. The public comment raised concerns regarding opportunities for comment by the community on the fishery, the need for specific risk assessments for all licenses and permits, and consideration of the impact of the fishery on migratory and resident nesting shorebirds.

The Department of Primary Industries and Regions South Australia provided a response to the Department of Climate Change, Energy, the Environment and Water. All comments were considered by the minister’s delegate in making their decision.

This instrument is a legislative instrument for the purposes of the Legislation Act 2003.

This instrument commences on 17 September 2024.

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 – South Australian Beach-cast Marine Algae Fishery, September 2024

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 or invertebrates taken in the South Australian Beach-cast Marine Algae Fishery (the fishery), and any associated notations, 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 fishery, with notations that inclusion of the specimens in the list are subject to restrictions or conditions that:

  • the specimen, or the marine vegetation from which it is derived, was taken lawfully;
  • the Department of Primary Industries and Regions South Australia must inform the Department of Climate Change, Energy, the Environment and Water of any intended material changes to the South Australian Beach-cast Marine Algae Fishery management arrangements that may affect this approval;
  • the Department of Primary Industries and Regions South Australia must inform the Department of Climate Change, Energy, the Environment and Water of any intended changes to fisheries legislation that may affect the legislative instruments relevant to this approval;
  • the Department of Primary Industries and Regions South Australia must provide the Department of Climate Change, Energy, the Environment and Water with an annual report by 17 September each year detailing any changes in the fishery; and
  • the specimens are included in the list until 17 September 2034.

Listing these specimens in the list will allow the export of these specimens without the need for export permits, subject to the conditions specified in the notations of Schedule 2.

A link to the declaration is accessible via the Department of Climate Change, Energy, the Environment and Water’s website at: https://www.dcceew.gov.au/environment/marine/fisheries/sa/seagrass

 

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.

Jessica Hoey, Delegate of the Minister for the Environment and Water

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to protect and conserve Australia’s native wildlife by regulating international trade to prevent over exploitation and safeguard ecosystems. The Act established a List of Exempt Native Specimens to exempt certain specimens from trade control provisions. This legislative instrument, introduced by the Delegate of the Minister for the Environment and Water, aims to amend this list by deleting specimens from or derived from the South Australian Beach-cast Marine Algae Fishery and specifying new inclusions subject to certain conditions. These conditions ensure that the specimens were taken lawfully, and require the Department of Primary Industries and Regions South Australia to inform the Department of Climate Change, Energy, the Environment and Water of any changes to management arrangements or legislation that may affect this approval, and to provide an annual report detailing changes in the fishery until 17 September 2034. This amendment allows the export of these specimens without export permits, subject to the specified conditions. The instrument 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. The decision to amend the list was made in consultation with the Department of Primary Industries and Regions South Australia and after considering public comments, and it is compatible with human rights as it does not raise any human rights issues.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – South Australian Beach-cast Marine Algae Fishery, September 2024, pertains to the inclusion and exclusion of certain specimens from the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This legislation applies to fish and invertebrate specimens derived from the South Australian Beach-cast Marine Algae Fishery, subject to specific conditions that ensure compliance with legal and management frameworks. These specimens are exempt from the trade control provisions applicable to regulated native specimens, allowing for their export without the need for export permits until 17 September 2034, subject to the conditions outlined in the instrument. The conditions include requirements for lawful taking of specimens, notification of changes in management arrangements or legislation, and annual reporting by the Department of Primary Industries and Regions South Australia to the Department of Climate Change, Energy, the Environment and Water. This legislation operates within the Commonwealth jurisdiction and does not necessitate a strategic assessment under the EPBC Act as the fishery is not managed by the Commonwealth under the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984. The instrument also incorporates relevant state and territory legislation and Commonwealth Acts as in force at the time of its commencement.

Key Provisions

This legislation amends the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, it removes specimens derived from fish or invertebrates taken in the South Australian Beach-cast Marine Algae Fishery from the list, and adds them back with certain conditions (sections 303DB and 303DC). These specimens can now be exported without export permits, but only if certain conditions are met. The conditions include ensuring the specimens were taken lawfully, that the Department of Primary Industries and Regions South Australia keeps the Department of Climate Change, Energy, the Environment and Water informed of any changes to the fishery or relevant legislation, and that an annual report is submitted by 17 September each year until 2034 (Schedule 2). The Act imposes specific obligations on the Department of Primary Industries and Regions South Australia. They must ensure the specimens are taken lawfully and provide annual reports to the Department of Climate Change, Energy, the Environment and Water detailing changes in the fishery. Additionally, they must inform the relevant department of any changes to fishery management arrangements or legislation that may affect the approval to include the specimens in the list. These obligations are designed to maintain oversight and ensure compliance with the conditions set forth in the legislation. Failure to comply with the conditions specified in the notations of Schedule 2 could result in civil or administrative penalties. While the legislation does not explicitly state the penalties for non-compliance, breaches of environmental legislation can typically result in significant fines or other enforcement actions. The Department of Climate Change, Energy, the Environment and Water may take legal action against entities that fail to adhere to the conditions, which could lead to substantial financial penalties. The specifics of any penalties would depend on the nature and severity of the breach.

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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.