Amendment of List of Exempt Native Specimens – Victorian Eel Fishery, April 2019

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2019L00603 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 – Victorian Eel Fishery, 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 Victorian Eel Fishery as specified in Schedule 1. The instrument also includes specimens from the same Victorian Eel 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 Victorian legislation website at http://www.legislation.vic.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 until the date 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 (Cth) or the Torres Strait Fisheries Act 1984 (Cth). 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 State/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.

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 also 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 Victorian Fisheries Authority has been consulted and supports amending the list of exempt native specimens to include product derived from the Victorian Eel 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 at least 20 business days. 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 – Victorian Eel Fishery, 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 Victorian Eel Fishery as specified in Schedule 1. The instrument also includes specimens from the same Victorian Eel 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 date 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.

 

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 provide for the protection of the environment, particularly matters of national environmental significance, and to establish a list of exempt native specimens from trade control provisions. This legislative instrument, issued in April 2019 by the Minister for the Environment, amends the list of exempt native specimens by removing certain specimens taken in the Victorian Eel Fishery and including others, subject to conditions such as lawful taking and a specified date until which exports are permitted. The changes follow consultations with the Victorian Fisheries Authority and public advertising for comments, which received none. The instrument aims to align with the Australian Government’s guidelines for ecologically sustainable management of fisheries and ensure compatibility with human rights as declared in international instruments.

Scope and Application

The Amendment of List of Exempt Native Specimens – Victorian Eel Fishery, April 2019 instrument amends the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). This instrument applies to entities and persons involved in the trade of native specimens derived from the Victorian Eel Fishery, ensuring that these specimens are properly regulated and exempt from certain trade control provisions where applicable. The amendment affects the classification of specimens derived from the Victorian Eel Fishery, making them either exempt or non-exempt based on specific conditions and dates outlined in Schedule 2 of the instrument. The jurisdictional reach of this Act is national, applying across the Commonwealth of Australia, including the offshore constitutional settlement areas where state/territory managed fisheries operate in Commonwealth waters. Specimens from eligible listed threatened species and those 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 instrument is subject to consultation requirements under the EPBC Act and was advertised for public comment, although no comments were received. The instrument is a legislative instrument under the Legislation Act 2003 and commences the day after it is registered. 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 this legislation (F2019L00603) involve amending the list of exempt native specimens under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (sections 303DC and 303DB). Specifically, the instrument removes certain specimens from the list of exempt native specimens taken in the Victorian Eel Fishery as detailed in Schedule 1, and adds other specimens from the same fishery to the list, subject to conditions that the specimens were taken lawfully and are included in the list until specified dates in Schedule 2. This amendment allows for the export of these specimens until the dates specified, thus extending the previously defined period for such exports. The Act imposes several obligations on parties involved in the trade of these specimens. Firstly, it mandates that any specimens included in the list of exempt native specimens must be taken lawfully. Additionally, the inclusion of specimens in the list is subject to conditions such as the specimen being derived from a species that is not an eligible listed threatened species under the EPBC Act, unless certain conditions are met. Furthermore, the specimens must not be derived from taxa listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Minister for the Environment is also required to consult with relevant ministers and stakeholders before making amendments to the list of exempt native specimens. Breaches of the provisions in this legislation can lead to civil or criminal consequences. Although specific offences and penalties are not detailed in the explanatory statement, the general framework under the EPBC Act provides for substantial penalties. For example, unlawful trade in native specimens can result in fines and imprisonment. The specific penalties would depend on the nature and severity of the breach, and the court may consider factors such as intent, previous offences, and the impact on the environment. The Act allows for significant fines and imprisonment terms, reflecting the seriousness of violations related to the protection of biodiversity and the environment.

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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.