The central legal mechanism here is the List of Exempt Native Specimens, established under section 303DB of the EPBC Act. This list operates within Part 13A of the Act, which regulates the international movement and commercial trade of Australian native specimens. Under section 303DD, a person is prohibited from exporting a native specimen from Australia unless either the specimen is included in the list of exempt native specimens, the export is under a permit, or another exemption applies. Inclusion in the list therefore provides a standing exemption from that prohibition, subject to any restrictions or conditions set out in the notation for that entry.

The power to amend the list is exercised under subsection 303DC(1)(a) by the Minister, or a delegate as occurred here. The amendment process is not subject to Parliament’s approval but is a legislative instrument, meaning it is published and may be disallowed by either House of Parliament within a certain period. The delegate here explicitly states the instrument is a legislative instrument for the purposes of the Legislation Act 2003.

The concept of “exempt native specimen” is defined in section 303DB itself: it includes a specimen that is a specimen of a kind that is included in the list, but only while that kind is in the list. The notation sets out the conditions under which the exemption operates. In both new entries, the primary condition is that “the specimen, or the fish or invertebrate from which it is derived, was taken lawfully”. This imports the lawfulness requirement under State fisheries law. The entries also make clear that even if the specimen is from the fishery, it is excluded if it belongs to an eligible listed threatened species (section 303BC) or a CITES-listed taxon under section 303CA. “Eligible listed threatened species” is defined in section 303BC as a species that is listed as threatened under Part 13 of the EPBC Act and that meets certain criteria for the purposes of the wildlife trade provisions. This is a narrower subset than all species listed under Part 13, because section 303BC applies additional eligibility conditions. CITES-listed taxa are those on Appendices I, II, or III as implemented domestically under section 303CA. The combination means that even if a species is not excluded under Part 13, it may still be excluded under these sections.

The instrument incorporates by reference the State management regime for each fishery: the Fish Resources Management Act 1994 (WA) and the Fish Resources Management Regulations 1995 (WA). Importantly, the instrument states that “All state and territory legislation referred to in Schedule 2 to the instrument is incorporated as in force at the time this instrument commences.” This means that if WA later changes its fisheries legislation, the reference does not automatically update , any future amendment to the list would be required to incorporate the new version. Operators cannot assume that later changes to State law are automatically imported for the purpose of the exemption; the condition of “taken lawfully” will still refer to the substantive law at the time of taking, but the definition of the fishery itself is fixed at commencement.

The direct subjects of this instrument are commercial fishers operating in the Pilbara Fish Trawl Interim Managed Fishery and the West Coast Rock Lobster Managed Fishery off Western Australia, as well as any person who takes, processes, exports, or trades specimens derived from those fisheries. This includes boat owners, crew members, seafood processors, wholesalers, exporters, and retail operators who handle product from these fisheries.

For fishers, the instrument determines whether they can lawfully export their catch without obtaining a separate EPBC Act permit. Without an entry on the exempt list, each export consignment would require an individual permit under Part 13A, with associated application costs, processing delays, and conditions. The listing thus directly affects the profitability and operational simplicity of exporting from these fisheries. The rock lobster fishery, in particular, benefits from the removal of the requirement for an approved wildlife trade operation declaration under section 303FN, which previously had to be maintained separately. That declaration process involves assessment of the fishery’s ecological sustainability and may impose additional conditions. The new notation removes that bureaucratic layer, reducing compliance costs and regulatory uncertainty for the next seven years.

Importers of Australian product into other countries may also be affected indirectly, because foreign customs authorities often rely on the EPBC Act listing as evidence of legality under Australian law. A valid listing facilitates market access. The Pilbara fishery, however, has a very short exemption period (to 24 August 2018), which creates commercial urgency and may require operators to seek alternative export approval mechanisms soon after the instrument commences. The rock lobster industry, by contrast, has planning certainty until 2025.

The instrument also affects the Western Australian Department of Primary Industries and Regional Development (or its equivalent), which administers the State fisheries management regimes. The notation effectively delegates to State enforcement the determination of whether a specimen was “taken lawfully”. That puts pressure on the State to maintain consistent and verifiable records of lawful take, as the Commonwealth exemption hinges on that condition. Conservation organisations and individuals who monitor wildlife trade may be affected because the removal of the approved wildlife trade operation condition for rock lobster reduces the specific sustainability assessment that would accompany such a declaration. They may be concerned that the fishery is now exempt without the same level of ongoing Commonwealth oversight. Finally, the decision affects the Commonwealth Department of the Environment and Energy (now Environment) which must monitor compliance and expiry dates, and which may face legal challenge if the listing is seen as inconsistent with the EPBC Act’s objects.

The instrument confers a right on any person to export native specimens from the listed fisheries without a permit, provided the conditions in the notation are satisfied. This right is a standing exemption from the prohibition in section 303DD. It is not an absolute right: it is contingent, time-limited, and subject to the exclusions for threatened and CITES-listed species.

The primary duty is to ensure that specimens were taken lawfully. “Lawfully taken” means the take must comply with the relevant State legislation: the Fish Resources Management Act 1994 (WA) and the Fish Resources Management Regulations 1995 (WA), as well as any management plan or licence conditions that apply. This duty falls on the person who takes the fish or invertebrate, but also on any subsequent person who exports or trades the specimen, because the exemption applies only if the taking was lawful. Exporters therefore have a due diligence obligation to verify the provenance of their stock. They must obtain and retain evidence that the catch was taken under a valid State licence, within permitted quotas, by lawful gear, in open seasons, and from lawful areas. The notation does not require that the exporter themselves hold a State licence, only that the taking was lawful.

Another duty is to ensure that the specimens do not belong to eligible listed threatened species under section 303BC or taxa listed under section 303CA (CITES). This requires knowledge of the species caught. For the rock lobster fishery, the target species is Panulirus cygnus, which is not listed, but there is always a risk of bycatch of listed species such as certain syngnathids (seahorses) or protected fish. The notation excludes any such specimens; they cannot be exported under the exemption. The duty extends to identifying any incidental catch and segregating it before export. There is no duty to apply for a separate permit for those excluded specimens; the instrument simply does not authorise their export.

The instrument also imposes a temporal limitation: the listing for the Pilbara fishery expires on 24 August 2018, and for the rock lobster fishery on 30 May 2025. After those dates, the exemption ceases automatically unless the list is further amended. There is a duty on operators to monitor expiry dates and, if they wish to continue exporting, to seek a new listing or obtain individual permits. The instrument also implicitly imposes a duty not to rely on the listing if the specimen was taken unlawfully or if it belongs to an excluded species. The right to use the exemption can be lost retroactively if a court later finds that the taking was not lawful under State law, even if the exporter believed it was lawful.

From a rights perspective, the instrument does not create any private right of action. It does not grant property rights or fishing rights; those are established under State law. It simply removes a Commonwealth prohibition for a defined class of specimens. The delegate had a duty to exercise the power under section 303DC(1)(a) in accordance with the EPBC Act and any relevant policies. The notation for the rock lobster fishery now omits the earlier requirement that specimens be covered by an approved wildlife trade operation declaration, which may reflect a policy judgment that the State management regime alone provides sufficient sustainability assurance. That change reduces the regulatory burden but also reduces the level of Commonwealth oversight.

This instrument itself does not prescribe penalties; those arise from the EPBC Act if a person exports a native specimen in contravention of the prohibition in section 303DD. The maximum penalty under that section is currently 500 penalty units (where a penalty unit is $210 as of 2024, adjusted periodically) or imprisonment for up to five years, or both for an individual. For a body corporate, the penalty can be up to five times that amount. The prohibition is strict liability in relation to the physical element of exporting: you export the specimen, and it is not covered by an exemption. However, the exceptions under section 303DB (exempt native specimens list) and permit provisions provide defences. If a person exports a specimen that they believe falls within the listing but it later turns out the specimen was taken unlawfully, they may be liable unless they can show they took reasonable steps to verify lawful take.

Enforcement is carried out by the Department of Environment inspectors (authorised officers under Part 17 of the EPBC Act) and by the Australian Border Force at the border. Inspectors have powers to inspect premises, search vessels, seize specimens, and ask for documentation. If an inspector finds a consignment of rock lobster or fish from these fisheries with no proper records of lawful take, or if the consignment includes a threatened species, the entire shipment may be seized and the exporter may face prosecution. The Department can also issue infringement notices for minor breaches.

The instrument itself is subject to disallowance under the Legislation Act 2003, which provides for parliamentary scrutiny. If either House of Parliament passes a resolution disallowing the instrument within the disallowance period (generally 15 sitting days after tabling), the instrument ceases to have effect. That would reinstate the old entries (if still in force) or leave the list with no entries for these fisheries, effectively requiring permits for export. The disallowance power is a form of political enforcement, albeit rarely used.

For the rock lobster fishery, the removal of the approved wildlife trade operation condition means there is no longer a periodic assessment of the fishery’s ecological sustainability as part of the listing. The only check is that each specimen must be taken lawfully under State law. If the State regime weakens or is poorly enforced, there is no automatic trigger for Commonwealth review until the listing expires in 2025. Conservation groups could seek judicial review of the decision to amend the list, arguing that the delegate failed to consider relevant matters (such as sustainability) or that the decision was unreasonable. The EPBC Act also allows third-party standing for environmental organisations to challenge decisions under Part 13A. A successful challenge could invalidate the amendment, making exports from these fisheries unlawful unless a permit is obtained.

The instrument sits within a complex web of federal and state legislation. First and foremost, it operates under Part 13A of the EPBC Act, which deals with international movement and commercial trade of wildlife. The List of Exempt Native Specimens is distinct from the permits and approved wildlife trade operation (WTO) and wildlife trade management plan regimes. Prior to this amendment, the rock lobster fishery had both an entry on the list and a WTO declaration under section 303FN. The amendment now removes the WTO condition, meaning the listing is the sole exemption for that fishery. Other fisheries may still require a WTO declaration or a permit, and those parallel regimes coexist.

The exclusion of “eligible listed threatened species” under section 303BC and CITES-listed taxa under section 303CA ties the instrument to Part 13 (threatened species listing) and Australia’s implementation of CITES. The EPBC Act already prohibits the export of CITES specimens without a permit; the listing here simply confirms that the exemption does not extend to them. Similarly, the EPBC Act’s Part 13 prohibits actions that will have a significant impact on listed threatened species, but that prohibition is independent of the wildlife trade provisions. A person could be liable under both Part 13 and Part 13A for taking a listed species.

The instrument expressly incorporates State legislation: the Fish Resources Management Act 1994 (WA) and the associated Regulations. This means that the definition of each fishery and the requirement of lawful taking are determined by State law. If a State court finds that a particular fishing operation was illegal under that Act (e.g., because of exceeding quota or fishing in a closed area), then the Commonwealth exemption does not apply. The EPBC Act does not create an independent standard for lawful take; it defers to State law on that point. However, the EPBC Act itself has its own provisions on unlawful trade; for example, a specimen taken in contravention of a State law that is also inconsistent with the EPBC Act’s objects could still be the subject of Commonwealth action. The interaction with the Fisheries Management Act 1991 (Cth) is not directly relevant here as both fisheries are solely State-managed.

As a legislative instrument, this amendment is subject to the Legislation Act 2003. It must be registered on the Federal Register of Legislation, tabled in Parliament, and may be subject to disallowance. The instrument also states that all State legislation referred to in Schedule 2 is incorporated as in force at the time the instrument commences. This creates a static incorporation, not ambulatory. If WA later amends its legislation, the Commonwealth list definition does not automatically update. However, the “taken lawfully” condition refers to the law in force at the time of taking, so a future change to WA law could make a previously lawful taking unlawful, or vice versa. That interaction creates potential confusion: the definition of the fishery is frozen at 2018, but the lawfulness of taking depends on the law at the time of take.

The instrument also interacts with international trade law. Australian exporters to CITES parties may need to show that the product is covered by an exemption under Australia’s CITES legislation. The listing on the exempt list provides that evidence. However, foreign importers may still require proof of lawful take under Australian law, and the notation provides a basis for that.

This instrument is itself an amendment to the List of Exempt Native Specimens. The source text does not describe prior amendments to the list for these fisheries, but certain inferences can be drawn. The old Pilbara entry referred to the “Pilbara Fish Trawl Interim Managed Fishery” and had an expiry of 30 May 2018, which suggests that earlier listing expired and had been renewed on a short-term basis. The new entry changes the name to “Pilbara Fish Trawl Interim Managed Fishery” (still “Interim”) but now defined more precisely by reference to the WA Act and Regulations rather than by a separate management plan. The old notation for Pilbara did not include specific exclusions for eligible listed threatened species or CITES taxa, though it referred to “specimens that belong to species listed under Part 13”. That is a broader exclusion than the new one. The new exclusion narrows it to “eligible listed threatened species” under section 303BC and CITES under section 303CA. This may reflect an amendment to the EPBC Act or a change in policy regarding which threatened species should be excluded from exempt list.

For the rock lobster fishery, the old entry referenced the “West Coast Rock Lobster Managed Fishery Management Plan 2012” specifically, while the new entry references only the Act and Regulations. The old notation included the requirement that specimens be covered by an approved wildlife trade operation declaration under section 303FN. That condition is now removed. The new entry also adds the exclusion for eligible listed threatened species and CITES taxa. The old entry did not contain that exclusion explicitly, though specimens that belonged to species listed under Part 13 were excluded under the general heading? Actually the old entry’s heading says “other than specimens that belong to species listed under Part 13 of the EPBC Act”. So the old rock lobster entry did exclude Part 13 species, but the new one narrows that to eligible listed threatened species (a subset) and CITES. That is a substantive change: some species listed under Part 13 may not be “eligible listed threatened species” under section 303BC, so they could now be covered by the exemption if they were taken in the rock lobster fishery? That seems unlikely, but it could be a trap. The old entry also appears to have no expiry date? The old notation for rock lobster only says “the specimens are covered by the declaration of an approved wildlife trade operation”. That condition itself could change if the declaration expired; but the new entry gives a fixed expiry of 30 May 2025.

The history of this instrument is that it was made on 24 May 2018, just days before the previous Pilbara listing was due to expire on 30 May 2018. The rock lobster listing had no explicit expiry in the old notation; it depended on the WTO declaration. The amendment therefore creates a clear sunset date for rock lobster where none existed before, but also removes the periodic sustainability assessment that came with WTO declarations. The full amendment history of the list is not available in the source, but it is known that the list is amended from time to time by similar instruments published on the Federal Register.

The source text does not refer to any litigation, and this instrument itself is a narrow administrative amendment. There is no recorded case law directly challenging this specific amendment. However, the List of Exempt Native Specimens and amendments made under section 303DC have been the subject of litigation in other contexts. For example, cases have tested the validity of listings and the scope of the delegate’s power. The High Court and Federal Court have considered the EPBC Act’s wildlife trade provisions in Booth v Bosworth (2001) and Blue Wedges Inc v Minister for Environment (2008), though those dealt with Part 13A in different contexts.

The removal of the WTO declaration condition for the rock lobster fishery could be challenged by an environmental organisation on administrative law grounds, such as failure to consider relevant factors (e.g., the sustainability of the fishery) or that the decision was irrational. The delegate is required to consider the EPBC Act’s objects, which include protecting biodiversity and promoting ecologically sustainable development. If a court found that the delegate did not adequately consider the long-term impact of a seven-year listing without sustainability oversight, the amendment could be set aside. There is also potential for litigation over the meaning of “taken lawfully” under State law, particularly if there is a dispute about whether a particular fishing method or quota breach renders the specimen unlawful. State courts would interpret WA fisheries law, and then the Commonwealth offence under section 303DD would depend on that interpretation. However, no such litigation has been reported in relation to these specific fisheries.

The instrument being a legislative instrument could be the subject of a disallowance motion in the Senate, which is not litigation but a parliamentary process. Disallowance has been used in the past for amendments to the exempt list, though rarely. The fact that the Minister’s delegate made the decision rather than the Minister personally might be challenged as an improper delegation, though section 303DC allows delegation under section 505A of the EPBC Act. The delegate here (Paul Murphy, Assistant Secretary) was clearly authorised. No litigation history indicates that this instrument was overturned or challenged.

Several traps may catch unwary operators. The most immediate is the extremely short expiry of the Pilbara listing: it runs only from commencement (day after registration on 24 May 2018) until 24 August 2018. That is less than three months. Anyone dealing in Pilbara fish should not assume the listing provides long-term cover. If they export after 24 August 2018 without a permit or further amendment, they commit an offence. The instrument does not provide for renewal; operators must monitor and seek alternative approvals in time. The fact that the amendment was signed only six days before the old listing expired suggests that the Commonwealth may be slow to act, leaving operators in a tight window.

Another trap is the change in the exclusion language. The old entries excluded “specimens that belong to species listed under Part 13 of the Act”. Part 13 includes listed threatened species, listed marine species, and listed migratory species. The new entries exclude only “eligible listed threatened species as defined under section 303BC” and CITES-listed taxa under section 303CA. “Eligible listed threatened species” is a more restrictive category: it means a species that is listed as threatened under Part 13 and is also determined to be eligible under the criteria in section 303BC (which relate to whether trade would be detrimental). That means some species listed under Part 13 that are not “eligible” under section 303BC could now be covered by the exemption, if they are taken in the fishery. For example, a marine species listed under Part 13 that is not threatened (like a protected fish) might no longer be excluded, unless it is also on the CITES list. Operators might mistakenly think that all Part 13 species are excluded, but the new notation narrows it. This could inadvertently allow export of species that were previously excluded. Conversely, conservation groups might argue that the delegate did not intend this change and that it undermines protection.

The rock lobster fishery’s new notation no longer requires an approved wildlife trade operation declaration. This removes a layer of Commonwealth oversight. Operators may not realise that the previous requirement for a WTO declaration under section 303FN has been lifted, and they may continue to waste time and money maintaining a WTO declaration unnecessarily. Alternatively, they may not appreciate that without the WTO declaration, the only sustainability check is State law, which may be less rigorous. If the Commonwealth later decides to revoke the listing for sustainability reasons, it would have to amend the list again, which is a longer process than varying a WTO declaration.

The incorporation of State legislation “as in force at the time this instrument commences” is another trap. If Western Australia later changes its definition of the fishery or the management regime, the Commonwealth definition does not automatically update. A specimen that was taken lawfully under State law at the time might later be considered not to have been taken in the “Western Australian West Coast Rock Lobster Managed Fishery” as defined in the 2018 version. Yet the condition of “taken lawfully” refers to the law at the time of taking, so the fishery definition is fixed. This could cause confusion if the State reforms its fisheries management boundaries.

Finally, the notation for the Pilbara fishery still uses the word “Interim” in the fishery name, but the instrument’s title refers to “Western Australian Pilbara Fish Trawl Managed Fishery” without “Interim”. The entry itself says “Pilbara Fish Trawl Interim Managed Fishery”. This inconsistency could lead to confusion about whether the same fishery is being referenced. Operators should confirm that the management regime they are fishing under matches the definition in the notation. The absence of a specific management plan reference may make it harder to verify.

For a fisher or exporter relying on this exemption, compliance requires a systematic approach. First, identify whether the specimens are from one of the two named fisheries. For the Pilbara fishery, the specimen must come from the Pilbara Fish Trawl Interim Managed Fishery as defined under WA law. For the rock lobster fishery, it must come from the West Coast Rock Lobster Managed Fishery as defined under the Fish Resources Management Act 1994 (WA) and Regulations. Operators should retain current copies of those WA laws and any management plans or licence conditions.

Second, ensure every specimen was taken lawfully. This means the fisher must hold a valid State fishing licence, comply with catch limits, size limits, gear restrictions, seasonal closures, and any area restrictions. The exporter must obtain from the fisher a statement or catch documentation that confirms lawful taking. It is advisable to keep paper or digital records including catch logs, landing receipts, and licence details. The notation does not require a specific form of evidence, but in the event of an audit or investigation, the exporter bears the onus of proving the exemption applies. The Department has published guidelines on acceptable evidence, such as catch records endorsed by State authorities.

Third, check that the specimens do not belong to an eligible listed threatened species under section 303BC of the EPBC Act or a CITES-listed taxon under section 303CA. The Department publishes a list of eligible listed threatened species for trade purposes and the CITES list. Operators should train crew to identify any such species and segregate them. If any are caught, they must not be exported under this exemption; a separate permits or intra-state disposal may be required.

Fourth, monitor the expiry date. For Pilbara, the exemption ends 24 August 2018. Before that date, the operator should either have secured a further amendment to the list or applied for an individual export permit under section 303CG. Those permits can take weeks to process. Waiting until the listing has expired to apply will leave a gap. For rock lobster, the expiry is 30 May 2025. Operators should diarise that date and begin the renewal process well in advance, given the Department’s processing times for list amendments or WTO declarations.

Fifth, understand that the exemption covers only the export from Australia. Importing countries may have their own requirements. The listing does not provide immunity from foreign laws. Exporters should check with their overseas clients whether they need additional documentation (e.g., CITES permits for any incidentally caught species, or health certificates).

Sixth, maintain records for at least five years after the export (or longer as specified under the EPBC Act). The Department may request evidence of lawful take and species identification. A failure to produce records may lead to the presumption that the exemption does not apply, resulting in prosecution.

Seventh, if the fishery changes its management regime or if new species are listed under sections 303BC or 303CA, operators must reassess compliance. The excluded species list can change by amendment to the EPBC Act or regulations. Even though the listing’s notation references the sections as they stand, future amendments to the EPBC Act may affect the definition of “eligible listed threatened species”. Operators should subscribe to Departmental notifications or legal updates. In practice, many operators will engage a consultant or industry body such as the Western Australian Fishing Industry Council (WAFIC) to monitor regulatory changes. The cost of compliance may be nontrivial but is necessary to avoid severe penalties.