Amendment of the List of Exempt Native Specimens-South Australia Lakes and Coorong Fishery (19/02/2016) [F2016L00137] and Amendment of List of Exempt Native Specimens-Australian salmon taken by Richey Fishing Company in the Tasmanian Scalefish Fishery [F2016L00172]-Concluded matters [2016] AUSStaCSDLM 144 (3 May 2016)

• Chapter 2
• Concluded matters

---

Chapter 2

Concluded matters

This chapter sets out matters which have been concluded to the satisfaction of the committee based on responses received from ministers or relevant instrument-makers.

Correspondence relating to these matters is included at Appendix 1.

Instrument	Amendment of the List of Exempt Native Specimens - South Australia Lakes and Coorong Fishery (19/02/2016) [F2016L00137] Amendment of List of Exempt Native Specimens - Australian salmon taken by Richey Fishing Company in the Tasmanian Scalefish Fishery [F2016L00172]
Purpose	Amends the List of Exempt Native Specimens (29/11/2001) to include product from the South Australia Lakes and Coorong Fishery and Australian salmon harvested by the Richey Fishing Company in Tasmanian coastal waters
Last day to disallow	15 sitting days after tabling (29 February 2016; 1 March 2016)[1]
Authorising legislation	Environment Protection and Biodiversity Conservation Act 1999
Department	Environment
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor No. 4 of 2016

Incorporation of extrinsic material

The committee commented as follows:

Section 14 of the Legislative Instruments Act 2003^[2] allows for the incorporation of extrinsic material into instruments. Legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that the instruments add the following entries to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) list of exempt native specimens:

• specimens that are or are derived from fish or invertebrates, other than specimens that belong to species listed under Part 13 of the EPBC Act, taken in the South Australian Lakes and Coorong Fishery, as defined in the Fisheries Management (Lakes and Coorong Fishery) Regulations 2009 and the Fisheries Management (General) Regulations 2007 in force under the Fisheries Management Act 2007 (South Australia); and

• Australian salmon (Arripis trutta) taken by the Richey Fishing Company in the Tasmanian Scalefish Fishery as defined in the Tasmanian Fisheries (Scalefish) Rules 2015 in force under the Tasmanian Living Marine Resources Management Act 1995.

However, neither the text of the instruments nor the explanatory statements (ESs) expressly state the manner in which the Tasmanian Living Marine Resources Management Act 1995 or the Fisheries Management Act 2007 (South Australia) are incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instruments to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for the Environment advised:

I can confirm that the intention in these instances is that references to definitions in instruments in force under the South Australian Fisheries Management Act 2007 and the Tasmanian Living Marine Resources Management Act 1995 are to be read as references to the instruments in force from time to time. This is also the case for other similar amendments to the List of Exempt Native Specimens where fisheries legislation is referenced.
I appreciate that the Committee relies on explanatory statements to understand the incorporation of extrinsic materials. The Department of the Environment will ensure that when future amendments to the List of Exempt Native Specimens are made, additional material will be included in explanatory statements more clearly addressing the manner in which extrinsic material has been incorporated.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instruments.

---

^[1] Due to the recall of the Parliament on the week beginning 18 April 2016 the last day to give notice to disallow instruments commented on in this chapter has moved forward from the date listed in previous monitors.

^[2] On 5 March 2016 the Legislative Instruments Act 2003 became the Legislation Act 2003 due to amendments made by the Acts and Instruments (Framework Reform) Act 2015.