Amendment of List of Exempt Native Specimens – Western Australian Pilbara Trap Managed Fishery, January 2024

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

Legislation au F2023L01699 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 – Western Australian Pilbara Trap Managed Fishery, January 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 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 Western Australian Pilbara Trap Managed 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 fisheries, 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 while an approved wildlife trade operation declaration for the fishery is in force. 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/wa/pilbara-trap

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

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

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.

The fishery was assessed under Part 10 of the EPBC Act in December 2013. That assessment concluded that actions approved or taken in accordance with the Fisheries Management Act 1991 (Cth), would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area. Consequently, the management regime was accredited under section 33 of the EPBC Act.

In making a decision to accredit the management regime, the minister’s delegate relied primarily on the outcomes of the 2004 assessment carried out for the purposes of Divisions 1 and 2 of Part 10 of the EPBC Act.

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 fisheries’ 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 Western Australian Department of Primary Industries and Regional Development has been consulted and supports amending the list to include product derived from the fisheries.

In addition, the proposal to amend the list was advertised on the Department of Climate Change, Energy, the Environment and Water’s website and comment was invited from interested people for 20 business days from 26 July 2023 to 23 August 2023.

No public comments were received.

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

This instrument commences on 7 January 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 – Western Australian Pilbara Trap Managed Fishery, January 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 Western Australian Pilbara Trap Managed Fishery (the fishery), and any associated notations, associated 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 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, subject to the conditions specified in the notations of Schedule 2, while an approved wildlife trade operation declaration for the fishery is in force. 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/wa/pilbara-trap

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.

Belinda Jago, Delegate of the Minister for the Environment and Water

Overview

The Environment Protection and Biodiversity Conservation Amendment (List of Exempt Native Specimens – Western Australian Pilbara Trap Managed Fishery) Instrument 2024 was enacted to amend the List of Exempt Native Specimens under the Environment Protection and Biodiversity Conservation Act 1999. This amendment responds to the need for streamlined export procedures for fish and invertebrate specimens from the Western Australian Pilbara Trap Managed Fishery while ensuring compliance with environmental regulations. The instrument, issued by the authority of the Delegate of the Minister for the Environment and Water, facilitates the export of these specimens without requiring export permits, provided they meet the specified conditions. These conditions include the lawful capture of the specimens and the presence of an approved wildlife trade operation declaration for the fishery. The policy objective of this amendment is to support sustainable trade practices by recognising the ecological sustainability of the Pilbara Trap Managed Fishery, as accredited under the EPBC Act. This legislative instrument was developed following consultations with relevant stakeholders, including the Western Australian Department of Primary Industries and Regional Development, and public consultation, which received no comments. It incorporates relevant Commonwealth legislation and is compatible with human rights, as confirmed by the Statement of Compatibility with Human Rights. The instrument will take effect on 7 January 2024, ensuring that the fishery's export processes remain efficient and compliant with environmental protection standards.

Scope and Application

The Environment Protection and Biodiversity Conservation Act 1999 Amendment of List of Exempt Native Specimens – Western Australian Pilbara Trap Managed Fishery, January 2024, pertains to the regulation of trade in native wildlife specimens, particularly those taken from the Western Australian Pilbara Trap Managed Fishery. This legislative instrument applies to fish and invertebrate specimens derived from this fishery, granting them exemption from trade control provisions stipulated in the EPBC Act. The exemption is conditional on the specimens being taken lawfully and while a declaration as an approved wildlife trade operation remains in effect for the fishery. The scope of this amendment is nationwide, as it concerns the Commonwealth's responsibility to regulate international trade to protect native wildlife and ecosystems. It is important to note that specimens belonging to threatened species listed under the EPBC Act are excluded from this exemption unless specific conditions are met. The instrument does not specify exclusions beyond those related to listed threatened species and those mentioned in the EPBC Act. The amendment is effective from 7 January 2024 and serves to facilitate the continued export of eligible specimens from the fishery, subject to the conditions outlined in Schedule 2 of the instrument.

Key Provisions

The main operative sections of this legislative instrument 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 allows for the establishment of a list that exempts certain specimens from trade control provisions. This instrument proposes to delete specimens derived from fish or invertebrates in the Western Australian Pilbara Trap Managed Fishery from the list, as outlined in Schedule 1, and to include them again with specific conditions in Schedule 2. The inclusion of these specimens in the list will allow their export without the need for export permits, provided the specimens were taken lawfully and that an approved wildlife trade operation declaration is in place for the fishery. This amendment aims to facilitate continued exports subject to the conditions specified in the notations of Schedule 2. The obligations imposed by this Act on the parties involved primarily centre around ensuring that any specimens derived from the Western Australian Pilbara Trap Managed Fishery and exported comply with the conditions outlined in Schedule 2. This includes verifying that the specimens were taken lawfully and that they are exported in accordance with the declaration of an approved wildlife trade operation. Exporters, importers, and other relevant parties must adhere to these conditions to ensure compliance with the EPBC Act and avoid potential legal repercussions. Breaching the conditions set forth in this legislative instrument can lead to significant consequences. Under the EPBC Act, non-compliance with the trade control provisions or the conditions of the approved wildlife trade operation declaration can result in civil or criminal penalties. For corporations, the maximum penalty for contravening the Act can be substantial, potentially reaching up to hundreds of thousands of dollars, depending on the severity and nature of the breach. Additionally, individuals responsible for managing or overseeing compliance may also face personal penalties, including fines and imprisonment, if they are found to be in breach of the Act’s provisions. These penalties underscore the importance of strict adherence to the conditions specified in Schedule 2 to avoid legal and financial repercussions.

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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.