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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT
(RECREATIONAL FISHING FOR MAKO AND PORBEAGLE SHARKS) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, Heritage and
the Arts,
the Honourable Peter Garrett AM MP)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT
(RECREATIONAL FISHING FOR MAKO AND PORBEAGLE SHARKS) BILL 2010
OUTLINE
The Environment Protection and Biodiversity Conservation Amendment
(Recreational Fishing for Mako and Porbeagle Sharks) Bill 2010 (the Bill)
amends the Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act) to allow recreational fishing of longfin mako, shortfin mako,
and porbeagle sharks in Commonwealth areas, notwithstanding the offence
provisions in Part 13, Division 2 of the EPBC Act, which prohibit killing,
injuring, taking, trading, keeping or moving listed migratory species in
Commonwealth areas, and trading, keeping or moving a listed migratory
species that has been taken in a Commonwealth area. The Bill is not
intended to override the effect of any State or Territory laws prohibiting
recreational fishing of longfin mako, shortfin mako or porbeagle sharks.
In December 2008 longfin mako, shortfin mako, and porbeagle sharks were
listed on Appendix II of the Convention on the Conservation of Migratory
Species of Wild Animals (CMS) primarily due to concerns about populations
of these species in the northern hemisphere. Under the EPBC Act is a legal
requirement that both Appendix I and Appendix II CMS species be listed as
migratory. Accordingly, these species were listed as migratory species
under the EPBC Act on 29 January 2010.
The effect of the listing of the species under the EPBC Act is that it is
an offence to kill, injure, take, trade, keep or move a longfin mako,
shortfin mako, or porbeagle shark in a Commonwealth area, or to trade, keep
or move a member of these species that has been taken in a Commonwealth
area.
Mako sharks are a highly prized sportfish and are targeted by some
recreational fishers. Porbeagles, while not targeted, are difficult to
distinguish from makos and are occasionally taken by recreational fishers
and, in many cases, are misidentified as makos. The listing of these
species, and in particular the subsequent application of the offence
provisions of Part 13 of the EPBC Act, has significant implications for
recreational fishing. These implications cannot be addressed effectively
either administratively or by regulation. The implications for commercial
fisheries will be addressed through accreditation processes under the EPBC
Act.
The Independent Review of the EPBC Act (the Hawke Review) examined the
provisions of the EPBC Act relating to migratory species, and found that
the clear intention of the CMS is to differentiate between Appendix I and
Appendix II species and the level of protection required. The Hawke Review
recommends changes to the provisions in Part 13 of the EPBC Act. The Bill
is an interim response to the issues identified by the Hawke Review as they
apply to mako and porbeagle sharks while the Government develops and
implements its formal response to the Hawke Review.
Financial Impact Statement
The Bill will have no financial impact.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Environment
Protection and Biodiversity Conservation Amendment (Recreational
Fishing for Mako and Porbeagle Sharks) Act 2010.
Clause 2 - Commencement
2. This clause provides that the Act will commence on the day after it
receives Royal Assent.
Clause 3 - Schedule(s)
3. This clause provides that the items specified in a Schedule is
amended or repealed as set out in the applicable items in the
Schedule, and other items in a Schedule have effect according to its
terms.
Schedule 1 - Amendment of the Environment Protection and Biodiversity
Conservation Act 1999
Item 1 - Section 212
4. This item is a technical amendment to include a subsection reference
which is required as a consequence of Item 3.
Item 2 - After paragraph 212(q) (Exception to Part 13, Division 2 offences)
5. This item inserts paragraph 212(1)(r) which is a new exception to the
offences under Part 13, Division 2 of the Environment Protection and
Biodiversity Conservation Act 1999 (the EPBC Act) (sections 211, 211A,
211B, 211C, 211D and 211E) which prohibit killing, injuring, taking,
trading, keeping or moving listed migratory species in Commonwealth
areas, and trading, keeping or moving a listed migratory species that
has been taken in a Commonwealth area.
6. The exception will apply only to an action that is taken in the
course of 'recreational fishing' and the action consists of, or
involves, taking, trading, keeping, or moving, or results in the death
or injury of, a longfin mako, shortfin mako, or porbeagle shark.
7. Ordinarily, a fisher who sells their catch would not be engaged in
'recreational fishing'. However, in limited circumstances, under
State or Territory law, a recreational fisher may sell some or all of
their catch in the course of recreational fishing - for example,
section 37A of the Fisheries Management Act 1994 (NSW) allows for
permits to be issued authorising sale of fish for charitable purposes.
The reference to 'trading' in new subparagraph 212(r)(i) is therefore
included to ensure that such conduct is also covered by the new
exception, but only to the extent that the sale of the longfin mako,
shortfin mako, and porbeagle sharks is in the course of recreational
fishing. The reference is not intended to override any State and
Territory laws that regulate sale (or trade) of mako and porbeagle
sharks taken in the course of recreational fishing.
Item 3 - At the end of section 212 (Definition of 'recreational fishing')
8. A fishing activity within the ordinary meaning of 'recreational
fishing' will be covered by the definition (for example, fishing of
longfin mako, shortfin mako, or porbeagle sharks by an individual
person from their private boat for personal use).
9. This item provides a definition of 'recreational fishing' for the
purposes of the exception in new paragraph 212(1)(r) to clarify that
'recreational fishing' also includes (but is not limited to) the
following types of fishing:
. fishing from a charter boat (within the meaning of the Fisheries
Management Act 1991), including fishing by the person in charge of
the boat, the crew of the boat or any other person on the boat;
. fishing in a fishing competition (whether or not in a professional
capacity); and
. fishing that is undertaken primarily for inclusion on a website, or
in a film, video, television program or radio program, or for
description or representation in a magazine, newspaper, book or
other such document.
Item 4 - At the end of paragraph 214(1)(b) (Offence for failing to notify
taking of a listed migratory species)
10. Section 214 establishes a requirement for a person to notify the
Secretary within 7 days of an action, which involved killing,
injuring, taking, trading, keeping or moving a listed migratory
species, that does not constitute an offence under Part 13, Division 2
of the EPBC Act because an exception under section 212 of the EPBC Act
applies to the action.
11. This item amends paragraph 214(1)(b) of the EPBC Act so that the
requirement to notify the Secretary does not apply in relation to an
action covered by the new exception for recreational fishing of
longfin mako, shortfin mako and porbeagle sharks.
Item 5 - Section 528 (Definition of longfin mako shark)
12. This item inserts a definition into section 528 of the EPBC Act to
clarify that a reference to a 'longfin mako shark' means the species
with scientific name Isurus paucus. This is the scientific name of the
species as listed on the Convention on the Conservation of Migratory
Species of Wild Animals.
Item 6 - Section 528 (Definition of porbeagle shark)
13. This item inserts a definition into section 528 of the EPBC Act to
clarify that a reference to a 'porbeagle shark' means the species with
scientific name Lamna nasus. This is the scientific name of the
species as listed on the Convention on the Conservation of Migratory
Species of Wild Animals.
Item 7 - Section 528 (Definition of shortfin mako shark)
14. This item inserts a definition into section 528 of the EPBC Act to
clarify that a reference to a 'shortfin mako shark' means the species
with scientific name Isurus oxyrinchus. This is the scientific name of
the species as listed on the Convention on the Conservation of
Migratory Species of Wild Animals.