Federal Register of Legislation - Australian Government

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EPBC303DC/SFS/2019/09 Lists as made
This instrument amends the List of Exempt Native Specimens Instrument 2001 to delete or include specimens that are or are derived from fish and invertebrates taken in the Commonwealth Southern Bluefin Tuna Fishery and the Commonwealth Western Tuna and Billfish Fishery.
Administered by: Environment and Energy
Registered 20 Nov 2019
Tabling HistoryDate
Tabled HR25-Nov-2019
Tabled Senate25-Nov-2019
To be repealed 25 Feb 2020
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

Environment Protection and Biodiversity Conservation Act 1999

Amendment of List of Exempt Native Specimens – Commonwealth Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 2019

(Issued by the authority of the delegate of 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 export 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 and invertebrates taken in two Commonwealth fisheries, and any 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 same two Commonwealth 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 declarations as approved wildlife trade operations are in place for these two fisheries as specified in Schedule 2.

The relevant fisheries are the:

·         Commonwealth Southern Bluefin Tuna Fishery, and

·         Commonwealth Western Tuna and Billfish Fishery

Listing these specimens in the list will allow the export of these specimens without the need for export permits, while the respective declarations as approved wildlife trade operations are in force for these fisheries. Links to the declarations are accessible via the following Department of the Environment and Energy’s (the Department) websites for these fisheries:

·         Southern Bluefin Tuna Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/southern-bluefin.

·         Western Tuna and Billfish Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/western-tuna-billfish.

The only effect of this instrument is to allow continued export for these specimens subject to the conditions provided in the notations 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 that 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 on the Federal Register of Legislation website at https://www.legislation.gov.au/.

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 or 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.

Strategic assessment – Southern Bluefin Tuna Fishery

Subsection 303DB(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 and 2 of the Part 10 of the EPBC Act.

The Southern Bluefin Tuna Fishery was assessed under Part 10 of the EPBC Act in February 2008. That assessment concluded that actions approved or taken in accordance with the Southern Bluefin Tuna Fishery Management Plan 1995, as amended by the Southern Bluefin Tuna Fishery Management Plan Amendment 2008 (No. 1), would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area. Consequently, the management plan was accredited under section 33 of the EPBC Act in September 2008.

In making a decision to accredit the management plan, the Minister relied primarily on the outcomes of the 2008 assessment carried out for the purposes of Divisions 1 and 2 of the Part 10 of the EPBC Act.

Strategic assessment – Western Tuna and Billfish Fishery

Subsection 303DB(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 and 2 of the Part 10 of the EPBC Act.

The Western Tuna and Billfish Fishery was assessed under Part 10 of the EPBC Act in April 2006. That assessment concluded that actions approved or taken in accordance with the Western Tuna and Billfish Fishery Management Plan 2005, as amended by the Western Tuna and Billfish Fishery Management Plan Amendment 2006 (No. 1), would not have an unacceptable or unsustainable impact on the environment in a Commonwealth marine area. Consequently, the management plan was accredited under section 33 of the EPBC Act in May 2007.

In making a decision to accredit the management plan, the Minister relied primarily on the outcomes of the 2006 assessment carried out for the purposes of Divisions 1 and 2 of the 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 Part 13 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.

In addition, the list must not include a specimen that belongs to taxa listed under section 209 of Part 13 of the EPBC Act (Australia’s List of Migratory Species). The List of Migratory Species includes all species considered to be native to Australian waters that are included in the appendices to the Bonn Convention, and all migratory bird species identified in 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 also must not include a specimen that belongs to taxa listed under section 248 of Part 13 of the EPBC Act (Australia’s List of Marine Species). The List of Marine Species includes all marine species identified at subsection 248(2) of the EPBC Act, and may include other species approved by the minister in consultation with the Threatened Species Scientific Committee.

In accordance with section 303CA of Part 13A 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’s delegate 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.

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 Australian Fisheries Management Authority (AFMA) has been consulted and supports amending the list to include product derived from the two Commonwealth fisheries identified above.

In addition, interested persons were invited to comment on AFMA’s application and the proposal to amend the list to include specimens from these two Commonwealth fisheries as required by section 303FR of the EPBC Act.

For the Southern Bluefin Tuna Fishery, the application and the proposal was advertised on the Department’s website for 25 business days from 2 August 2019 until 9 September 2019. One public comment was received. All comments received were taken into account in the decision to include specimens derived from the fishery in the list of exempt native specimens. Public comments raised a number of concerns requiring management attention, including the:

·         Stock status for southern bluefin tuna remains well below that required to produce maximum sustainable yield.

·         Potential to limit the number of southern bluefin tuna that may grow to sexual maturity by capturing juvenile fish for ranching.

·         Improving cooperation between Indian Ocean Tuna Commission members and non-contracting parties to agree on quotas that promote sustainable fishing.

·         Better understand the impact on southern bluefin tuna stocks by the recreational fishing sector, including quantifying non-commercial catches.

For the Western Tuna and Billfish Fishery, the application and the proposal was advertised on the Department’s website for 26 business days from 12 August 2019 until 16 September 2019. 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 – Commonwealth Southern Bluefin Tuna Fishery and Commonwealth Western Tuna and Billfish Fishery, November 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 purpose of this instrument is to delete from the list specimens that are or are derived from fish and invertebrates taken in two Commonwealth fisheries, and any 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 same two Commonwealth 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 declarations as approved wildlife trade operations are in place for these two fisheries as specified in Schedule 2.

The relevant fisheries are the:

·         Commonwealth Southern Bluefin Tuna Fishery, and

·         Commonwealth Western Tuna and Billfish Fishery

Listing these specimens in the list will allow the export of these specimens without the need for export permits, while the respective declarations as approved wildlife trade operations are in force for these fisheries. Links to the declarations are accessible via the following Department of the Environment and Energy’s (the Department) websites for these fisheries:

·         Southern Bluefin Tuna Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/southern-bluefin.

·         Western Tuna and Billfish Fishery webpage at http://environment.gov.au/marine/fisheries/commonwealth/western-tuna-billfish.

The only effect of this instrument is to allow continued export for these specimens subject to the conditions provided in the notations 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.

 

Nathan Sibley, Acting Assistant Secretary, Environment Approvals and Wildlife Trade Branch (Delegate of the Minister for the Environment)