Federal Register of Legislation - Australian Government

Primary content

EPBC303 DC/SFS/2021/03 Lists as made
This instrument amends the List of Exempt Native Specimens Instrument 2001 by deleting from, and including in the list, specimens that are or are derived from fish or invertebrates taken in the Queensland Gulf of Carpentaria Developmental Fin Fish Trawl Fishery.
Administered by: Agriculture, Water and the Environment
Registered 25 Mar 2021
Tabling HistoryDate
Tabled HR11-May-2021
Tabled Senate11-May-2021
Date of repeal 12 Aug 2021
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003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 SpecimensQueensland Gulf of Carpentaria Developmental Fin Fish Trawl Fishery, March 2021

(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 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 the 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 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 fishery is:

·         Queensland Gulf of Carpentaria Developmental Fin Fish Trawl 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 the fishery. Links to the declaration is accessible via the following Department of Agriculture, Water and the Environment (the Department) websites for the fishery:

·         Gulf of Carpentaria Developmental Fin Fish Trawl Fishery

·         webpage at http://www.environment.gov.au/marine/fisheries/qld/developmental-fin-fish-trawl

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

All Queensland legislation referred to in the instrument is incorporated as in force at the time this instrument commences. All Queensland legislation incorporated by reference in the instrument can be freely accessed on the Queensland Legislation website: https://www.legislation.qld.gov.au/ (as of March 2021).

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 the Schedule are taken or derived.

The fishery listed in the Schedule to the instrument are 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 the Schedule.

Precautionary principle

Under section 391(1) of the EPBC Act, the Minister must take account of the precautionary principle when deciding whether to amend the list and when deciding whether to declare an operation to be an approved wildlife trade operation.

Section 391(2) of the EPBC Act provides that the precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

The conditions proposed for inclusion on Part 13A approvals are designed to ensure Queensland follows their prescribed management arrangements, for the Department to be informed of intended material changes to management arrangements and fisheries legislation, and for Queensland to report annually against fishery management guidelines. The conditions represent a precautionary approach to the management of environmental uncertainty and risk. The management regime, when supported by these conditions is expected to be enough to prevent serious or irreversible environmental damage being caused by this fishery.

The list established under section 303DB(1) of the EPBC Act must not include a specimen that belongs to taxa listed under section 209 of the EPBC Act (Australia’s List of Migratory Species), or specimens that belong to taxa listed under section 248 of the EPBC Act (Australia’s List of Marine Species).

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.

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.

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 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 Queensland Department of Agriculture and Fisheries has been consulted and supports amending the list to include product derived from the Queensland Gulf of Carpentaria Developmental Fin Fish Trawl Fishery.

In addition, the proposal to amend the list was advertised on the Department’s website and comment was invited from interested persons 24 July 2020 to 26 August 2020 (a total of more than 20 business days excluding all state, territory and national public holidays).

Two public submissions were received which raised concerns regarding the need to: regulate the fishery under Queensland fisheries regulations; improve information and management for target stock (including Mangrove Jack); bycatch; discards; protected species, its ecological resources; and to improve monitoring of fish catch and interactions. In particular that the fishery:

  • has been operating for 22 years as a developmental fishery. DAWE should not approve it until the fishery is fully regulated under Queensland fisheries regulations.
  • requires a harvest strategy, a Level 2 ERA, a bycatch mitigation strategy, stock assessments, independent monitoring programs and reporting of bycatch,
  • has a large quantity of unreported bycatch, which is socially unacceptable,
  • stocks of Mangrove Jack do not appear to have recovered,
  • has a decline in non-target marine megafauna species, and
  • is economically unviable and product is often low value.

These matters were considered throughout the assessment of the fishery and have either been addressed by QDAF or are being addressed via conditions on wildlife trade (Part 13A) approvals granted in association with this amendment of 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

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendment of List of Exempt Native Specimens – Queensland Gulf of Carpentaria Developmental Fin Fish Trawl Fishery, March 2021

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 a Commonwealth fishery, 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 Commonwealth 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 declarations as approved wildlife trade operations are in place for these the fishery as specified in Schedule 2.

The relevant fishery is:

·         Queensland Gulf of Carpentaria Developmental Fin Fish Trawl 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 the fishery. Links to the declarations are accessible via the following Department of Agriculture, Water and the Environment (the Department) website for the fishery:

·         Gulf of Carpentaria Developmental Fin Fish Trawl Fishery at http://www.environment.gov.au/marine/fisheries/qld/developmental-fin-fish-trawl

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.

Laura Timmins, Senior Director, Wildlife Trade Office (Delegate of the Minister for the Environment)