Amendment of List of Exempt Native Specimens – Tasmanian Richey Fishing Company – Australian Salmon, April 2019

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2019L00616 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 – Tasmanian Richey Fishing Company – Australian Salmon, April 2019

(Issued by the authority of the Minister for the Environment)

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 fishery 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 relevant fisheries are as follows:

  • Tasmanian Richey Fishing Company – Australian Salmon in the Tasmanian Scalefish Fishery

 

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 legislation incorporated by reference in the instrument can be freely accessed on the Tasmanian legislation website at https://www.legislation.tas.gov.au/ (as of April 2019).

 

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 under the EPBC Act until the dates specified in Schedule 2. The effect of this instrument is to extend the specified date, and to clarify the description of the specimens included in the list of exempt native specimens in Schedule 2.  

 

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). 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 Tasmanian Department of Primary Industries, Parks, Water and Environment has been consulted and supports amending the list of exempt native specimens to include product derived from the Tasmanian Richey Fishing Company – Australian Salmon in the Tasmanian Scalefish Fishery. In addition, the proposal to amend the list of exempt native specimens was advertised twice on the Department of the Environment and Energy’s website and comment was invited from interested people for a period of 20 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 WITH HUMAN RIGHTS

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 – Tasmanian Richey Fishing Company – Australian Salmon, April 2019

 

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 fishery 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 effect of this instrument is to extend the export approval until the specified date, and to clarify the description of the specimens included in the list of exempt native specimens 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.

 

John Gibbs, 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 to address the need for comprehensive protection of the environment, particularly biodiversity, and to provide a framework for the conservation and sustainable use of Australia's natural resources. This Act empowers the federal government to regulate activities that may have significant impacts on the environment, including the trade of native specimens. One of the mechanisms under this Act is the establishment of a list of exempt native specimens, which are exempt from the trade control provisions that apply to regulated native specimens. The relevant enacting body for amendments to this list is the Minister for the Environment, who must consult with other relevant ministers and stakeholders before making any amendments. The policy objective behind these amendments is to ensure that the export of native specimens is managed in a way that aligns with Australia's ecological sustainability guidelines and international obligations.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – Tasmanian Richey Fishing Company – Australian Salmon, April 2019 applies specifically to the specimens derived from the Tasmanian Richey Fishing Company’s operations within the Tasmanian Scalefish Fishery. This amendment concerns the listing and regulation of native specimens under the EPBC Act, particularly those that are exempt from trade control provisions, subject to certain conditions. The instrument alters the list of exempt native specimens, either by removing or adding specific specimens, and specifies that these specimens must be derived lawfully and are included in the list until specified dates. The changes apply nationally across Australia, with federal oversight and state cooperation, as outlined in the Offshore Constitutional Settlement arrangements. The amendment does not extend to specimens that belong to eligible listed threatened species or those listed under CITES, ensuring compliance with broader environmental protection standards. This legislative instrument is crafted to facilitate lawful trade and export of certain fishery products while adhering to sustainability and conservation principles. In terms of jurisdictional reach, the Act applies to the Commonwealth, with states and territories collaborating under the Offshore Constitutional Settlement arrangements for fisheries management. The legislative instrument amends the list of exempt native specimens as per section 303DC of the EPBC Act, with the changes taking effect from the day after registration. The amendment is made in consultation with relevant stakeholders, including the Tasmanian Department of Primary Industries, Parks, Water and Environment, and follows public consultation. The Act also ensures that any state and territory legislation referenced is incorporated as in force at the time of commencement, while Commonwealth Acts and disallowable instruments are incorporated as in force from time to time. This amendment is compatible with human rights as it does not engage any of the applicable rights or freedoms outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The main operative sections of this legislation are sections 303DC and 303DB of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303DC provides for the establishment of a list of exempt native specimens, while section 303DB sets out the criteria for including specimens in this list. This legislative instrument amends the list by deleting certain specimens from the list of exempt native specimens taken in the specified fishery and including others from the same fishery, subject to certain restrictions and conditions. These restrictions include that the specimens must have been taken lawfully, and the inclusion in the list is subject to the dates specified in Schedule 2. Under this Act, the Minister for the Environment is required to consult with relevant Commonwealth ministers and state/territory ministers before amending the list of exempt native specimens, as well as with other persons and organisations deemed appropriate. The Tasmanian Department of Primary Industries, Parks, Water and Environment has been consulted and supports the amendment, and the proposal was advertised on the Department of the Environment and Energy’s website to invite comments from interested parties for 20 business days. All comments received were taken into account in the decision to include specimens from the fishery in the list of exempt native specimens. The Act imposes certain obligations and requirements on the parties it governs. For example, it requires that specimens included in the list of exempt native specimens must not belong to an eligible listed threatened species unless certain 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 of exempt native specimens. The Act also mandates that the assessment of the ecological sustainability of the relevant fishery’s management arrangements must be in accordance with the Australian Government’s ‘Guidelines for the Ecologically Sustainable Management of Fisheries – 2nd Edition.’ Failure to comply with the provisions of this Act may result in various civil or criminal consequences. However, the explanatory statement does not specify any particular offences, penalties, or consequences for breach. It is important to note that any breaches of the Act may be subject to the general provisions of the EPBC Act, which could include fines and imprisonment depending on the severity of the offence. As a legislative instrument, this Act is subject to the provisions of the Legislation Act 2003, which outlines the process for incorporating state and territory legislation and Commonwealth Acts into the instrument.

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