Environment Protection and Biodiversity Conservation Act 1999 (consolidated as of January 1, 2011), Australia

Subdivision AA—Approved conservation advice

266B Approved conservation advice for listed threatened species and listed threatened ecological communities

Minister to ensure there is approved conservation advice

(1)

The Minister must ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed.

(2)

For this purpose, approved conservation advice is a document, approved in writing by the Minister (and as changed from time to time in accordance with subsection (3)), that contains:

(a)

a statement that sets out:

(i)

the grounds on which the species or community is eligible to be included in the category in which it is listed; and

(ii)

the main factors that are the cause of it being so eligible; and

(b)

either:

(i)

information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or

(ii)

a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community.

Changing approved conservation advice

(3) The Minister may, in writing, approve changes to approved conservation advice.

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Consultation with Scientific Committee

(4)

If the Minister proposes to approve a document as approved conservation advice, the Minister must consult the Scientific Committee about the document, unless its content is substantially the same as material that the Committee has previously provided to the Minister.

(5)

If the Minister proposes to approve a change to approved conservation advice, the Minister must consult the Scientific Committee about the change, unless the change is substantially the same as a change that the Scientific Committee has previously advised the Minister should be made.

Publication requirements

(6)

If the Minister approves a document as approved conservation advice, the Minister must:

(a)

within 10 days of the approval of the document, publish the approved conservation advice on the internet; and

(b)

comply with any other publication requirements of the regulations.

(7)

If the Minister approves a change to approved conservation advice, the Minister must:

(a)

within 10 days of the approval of the change, publish the advice, as changed, on the internet; and

(b)

comply with any other publication requirements of the regulations.

Instruments of approval are not legislative instruments

(8) An instrument of approval under subsection (2) or (3) is not a legislative instrument.

Subdivision A—Recovery plans and threat abatement plans

267 Simplified outline of this Subdivision

The following is a simplified outline of this Subdivision:

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Recovery plans for listed threatened species and ecological communities and threat abatement plans for key threatening processes bind the Commonwealth and Commonwealth agencies.

The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed. The Minister may, at any other time, decide whether to have such a plan.

The Minister need ensure a threat abatement plan is in force for a key threatening process only if the Minister decides that a plan is a feasible, effective and efficient way of abating the process. The Minister must consult before making such a decision.

A recovery plan or threat abatement plan can be made by the Minister alone or jointly with relevant States and Territories, or the Minister can adopt a State or Territory plan. There must be public consultation and advice from the Scientific Committee about the plan, regardless of how it is made or adopted.

268 Compliance with recovery plans and threat abatement plans

A Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan.

269 Implementing recovery and threat abatement plans

(1)

Subject to subsection (2), the Commonwealth must implement a recovery plan or threat abatement plan to the extent to which it applies in Commonwealth areas.

(2)

If a recovery plan or a threat abatement plan applies outside Commonwealth areas in a particular State or self-governing Territory, the Commonwealth must seek the co-operation of the State or Territory with a view to implementing the plan jointly with the State or Territory to the extent to which the plan applies in the State or Territory.

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269AA Decision whether to have a recovery plan

Minister has an initial obligation and then a discretion

(1)

The Minister must decide whether to have a recovery plan for a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community within 90 days after the species or community becomes listed. The Minister may, at any other time, decide whether to have a recovery plan for the species or community.

(2)

In this section:

(a)

the decision that the Minister is required by subsection (1) to make in relation to the species or community within the 90 day period referred to in that subsection is the initial recovery plan decision; and

(b)

any subsequent decision that the Minister makes under subsection (1) in relation to the species or community is a subsequent recovery plan decision.

Making the initial recovery plan decision

(3) In making the initial recovery plan decision, the Minister must have regard to the recommendation (the initial recommendation) made by the Scientific Committee as mentioned in paragraph 189(1B)(c) in relation to the species or community.

Making a subsequent recovery plan decision (unless subsection (5) applies)

(4) In making a subsequent recovery plan decision in relation to the species or community, other than a decision to which subsection (5) applies:

(a)

the Minister must have regard to the initial recommendation in relation to the species or community; and

(b)

the Minister must have regard to any advice subsequently provided to the Minister by the Scientific Committee about whether there should be a recovery plan for the species or community.

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Changing from a decision to have a recovery plan to a decision not to have a recovery plan—additional requirements

(5)

If, at a time when a decision to have a recovery plan for the species or community is in force (whether or not the plan has yet been made), the Minister is proposing to make a subsequent recovery plan decision that there should not be a recovery plan for the species or community:

(a)

the Minister must ask the Scientific Committee for advice relating to the proposed decision; and

(b)

the Minister must publish a notice inviting comments on the proposed decision in accordance with subsection (7); and

(c)

the Minister must, in deciding whether to make the proposed decision, take account of:

(i)

any advice provided by the Scientific Committee in relation to the proposed decision; and

(ii)

subject to subsection (6), the comments the Minister receives in response to the notice referred to in paragraph (b).

(6)

The Minister is not required to take a comment referred to in subparagraph (5)(c)(ii) into account if:

(a)

the Minister does not receive the comment until after the cut-off date specified in the notice under paragraph (5)(b); or

(b)

the Minister considers that regulations referred to in paragraph (8)(b) have not been complied with in relation to the comment.

(7)

The notice referred to in paragraph (5)(b):

(a)

must be published in accordance with the regulations referred to in paragraph (8)(a); and

(b)

must set out the decision the Minister proposed to make; and

(c)

must invite people to make comments, to the Minister, about the proposed decision; and

(d)

must specify the date (the cut-off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e)

must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (8)(b), apply to making comments; and

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(f) may also include any other information that the Minister considers appropriate.

(8) The regulations must provide for the following:

(a)

how a notice referred to in paragraph (5)(b) is to be published;

(b)

the manner and form for making comments.

General publication requirements

(9) The Minister must publish the following:

(a)

the Minister’s initial recovery plan decision, and the reasons for it;

(b)

each subsequent recovery plan decision (if any), and the

reasons for it. The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.

Note: This subsection must be complied with, even if the Minister has already published notice of the proposed decision in accordance with subsections (5) and (7).

Decisions not legislative instruments

(10) An instrument making a decision under subsection (1) is not a legislative instrument.

269A Making or adopting a recovery plan

Application

(1) This section applies only if the Minister’s most recent decision under section 269AA in relation to a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community is to have a recovery plan for the species or community.

Note: Subsection 273(1) sets a deadline of 3 years from the decision for ensuring that a recovery plan is in force for the species or community. Subsection 273(2) allows that period to be extended.

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Making a plan

(2) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of:

(a)

a listed threatened species (except one that is extinct or is a conservation dependent species); or

(b)

a listed threatened ecological community.

Making a plan jointly with a State or Territory

(3) The Minister may make a written recovery plan for the purposes of the protection, conservation and management of a listed threatened species (except one that is extinct or is a conservation dependent species) or a listed threatened ecological community jointly with one or more of the States and self-governing Territories in which the species or community occurs, or with agencies of one or more of those States and Territories.

Content of a plan

(4) The Minister must not make a recovery plan under subsection (2) or (3) unless the plan meets the requirements of section 270.

Prerequisites to making a plan

(5) Before making a recovery plan under subsection (2) or (3) for a listed threatened species or listed threatened ecological community, the Minister must:

(a) consult the appropriate Minister of each State and self-governing Territory in which the species or community occurs, and in which actions that the plan would provide for would occur, with a view to:

(i)

taking the views of each of those States and Territories into account in making the plan under subsection (2); or

(ii)

making the plan jointly under subsection (3);

unless the species or community occurs only in a Commonwealth area; and

(b)

consider the advice of the Scientific Committee given under section 274; and

(c)

consult about the plan and consider comments in accordance with sections 275 and 276.

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Limits on making a plan

(6) The Minister must not make a recovery plan under subsection (2) for a species or ecological community that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable, within the period of 3 years referred to in subsection 273(1), to make the plan under subsection (3) of this section with each State or Territory:

(a)

in which the species or community occurs; and

(b)

in which actions that the plan would provide for would occur, if the plan were made under subsection (2) of this section.

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a recovery plan a plan made by a State, a self-governing Territory or an agency of a State or self-governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.

Note: Section 277 requires that:

(a)

an adopted plan have the content required for a recovery plan by section 270; and

(b)

there has been adequate consultation in making the plan adopted; and

(c)

the Minister consult the Scientific Committee about the content of the plan.

Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2) (whether it was adopted with modifications or not).

270 Content of recovery plans

(1) A recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species or listed threatened ecological community concerned so that its chances of long-term survival in nature are maximised.

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(2) In particular, a recovery plan must (subject to subsection (2A)):

(a)

state the objectives to be achieved (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community); and

(b)

state criteria against which achievement of the objectives is to be measured (for example, a specified number and distribution of viable populations of a species or community, or the abatement of threats to a species or community); and

(c)

specify the actions needed to achieve the objectives; and (ca) identify threats to the species or community; and

(d)

identify the habitats that are critical to the survival of the species or community concerned and the actions needed to protect those habitats; and

(e)

identify any populations of the species or community concerned that are under particular pressure of survival and the actions needed to protect those populations; and

(f)

state the estimated duration and cost of the recovery process; and

(g)

identify:

(i)

interests that will be affected by the plan’s implementation; and

(ii)

organisations or persons who will be involved in evaluating the performance of the recovery plan; and

(h)

specify any major benefits to native species or ecological communities (other than those to which the plan relates) that will be affected by the plan’s implementation; and

(j)

meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(2A) A recovery plan need only address the matters mentioned in paragraphs (2)(d), (e), (f), (g) and (h) to the extent to which it is practicable to do so.

(3) In making a recovery plan, regard must be had to:

(a)

the objects of this Act; and

(b)

the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

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(c)

minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

(d)

meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community to which the plan relates; and

(e)

the role and interests of indigenous people in the conservation of Australia’s biodiversity.

270A Decision whether to have a threat abatement plan

Decision

(1) The Minister may at any time decide whether to have a threat abatement plan for a threatening process in the list of key threatening processes established under section 183. The Minister must do so:

(a)

within 90 days of the threatening process being included in the list; and

(b)

within 5 years of the last decision whether to have a threat abatement plan for the process, if that decision was not to have a threat abatement plan for the process.

Basis for decision

(2) The Minister must decide to have a threat abatement plan for the process if he or she believes that having and implementing a threat abatement plan is a feasible, effective and efficient way to abate the process. The Minister must decide not to have a threat abatement plan if he or she does not believe that.

Consultation before making a decision

(3) Before making a decision under this section, the Minister must:

(a)

request the Scientific Committee to give advice within a specified period; and

(b)

take reasonable steps to request any Commonwealth agency, any State, any self-governing Territory, and any agency of a State or self-governing Territory, that would be affected by or interested in abatement of the process to give advice within a specified period;

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on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Consulting others

(4) Subsection (3) does not prevent the Minister from requesting any other person or body to give advice within a specified period on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Request may be made before listing

(5) A request for advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process may be made before or after the process is included in the list of key threatening processes established under section 183.

Time for giving advice

(6) The Minister must not make a decision whether to have a threat abatement plan for the process before the end of the period within which he or she has requested a person or body to give advice on the feasibility, effectiveness or efficiency of having and implementing a threat abatement plan to abate the process.

Considering views expressed in consultation

(7) When the Minister is making a decision under this section, he or she must consider the advice that a person or body gave on request within the period specified in the request.

Publishing decision and reasons

(8) The Minister must publish in accordance with the regulations (if any):

(a)

a decision whether or not to have a threat abatement plan for a key threatening process; and

(b)

the Minister’s reasons for the decision.

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Section 270B

Special rules for processes included in original list

(9) Subsections (3), (4), (5), (6) and (7) do not apply in relation to a decision about a process included in the list under section 183 as first established.

270B Making or adopting a threat abatement plan

Application

(1) This section applies only if the Minister’s most recent decision under section 270A in relation to a key threatening process is to have a threat abatement plan for the process.

Note: Section 273 sets a deadline of 3 years from the decision for ensuring that a threat abatement plan is in force for the process.

Making a plan

(2) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process.

Making a plan jointly with a State or Territory

(3) The Minister may make a written threat abatement plan for the purposes of reducing the effect of the process, jointly with the States and self-governing Territories in which the process occurs or with agencies of those States and Territories.

Content of a plan

(4) The Minister must not make a threat abatement plan under subsection (2) or (3) unless the plan meets the requirements of section 271.

Prerequisites to making a plan

(5) Before making a threat abatement plan for the process under subsection (2) or (3), the Minister must:

(a) consult the appropriate Minister of each State and self-governing Territory in which the process occurs, with a view to:

(i) taking the views of each of those States and Territories into account in making the plan under subsection (2); or

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(ii) making the plan jointly under subsection (3); unless the process occurs only in a Commonwealth area; and

(b)

consider the advice of the Scientific Committee given under section 274; and

(c)

consult about the plan and consider comments in accordance with sections 275 and 276.

Limits on making a plan

(6) The Minister must not make a threat abatement plan under subsection (2) for a process that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable to make the plan:

(a)

jointly with each of the States and self-governing Territories in which the process occurs; and

(b)

within 3 years of the decision to have the plan.

Adopting a State or Territory plan

(7) The Minister may, by instrument in writing, adopt as a threat abatement plan for the process a plan made by a State, a self-governing Territory or an agency of a State or self-governing Territory (whether or not the plan is in force in the State or Territory). The Minister may adopt the plan with such modifications as are specified in the instrument. This subsection has effect subject to section 277.

Note: Section 277 requires that:

(a)

an adopted plan have the content required for a threat abatement plan by section 271; and

(b)

there has been adequate consultation in making the plan adopted; and

(c)

the Minister consult the Scientific Committee about the content of the plan.

Effect of adopting a plan

(8) A plan adopted under subsection (7) has effect as if it had been made under subsection (2), whether it was adopted with modifications or not.

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271 Content of threat abatement plans

(1)

A threat abatement plan must provide for the research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long-term survival in nature of native species and ecological communities affected by the process.

(2)

In particular, a threat abatement plan must:

(a)

state the objectives to be achieved; and

(b)

state criteria against which achievement of the objectives is to be measured; and

(c)

specify the actions needed to achieve the objectives; and

(g)

meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(3)

In making a threat abatement plan, regard must be had to:

(a)

the objects of this Act; and

(b)

the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

(c)

minimising any significant adverse social and economic impacts consistently with the principles of ecologically sustainable development; and

(d)

meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community threatened by the key threatening process that is the subject of the plan; and

(e)

the role and interests of indigenous people in the conservation of Australia’s biodiversity.

(4)

A threat abatement plan may:

(a)

state the estimated duration and cost of the threat abatement process; and

(b)

identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and

(c)

specify any major ecological matters (other than the species or communities threatened by the key threatening process that is the subject of the plan) that will be affected by the plan’s implementation.

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(5) Subsection (4) does not limit the matters that a threat abatement plan may include.

272 Eradication of non-native species

If:

(a)

the actions specified under paragraph 270(2)(c) in a recovery plan, or under paragraph 271(2)(c) in a threat abatement plan, include the eradication of a non-native species; and

(b)

the species is threatened in a country in which its native

habitat occurs; the recovery plan, or threat abatement plan, must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

273 Ensuring plans are in force

When a plan comes into force

(1A) A recovery plan or a threat abatement plan comes into force on the day on which it is made or adopted, or on a later day specified by the Minister in writing.

Deadline for recovery plan

(1)

Subject to subsection (2), a recovery plan for a listed threatened species or a listed threatened ecological community must be made and in force within 3 years of the decision under section 269AA to have the plan.

(2)

The Minister may, in writing, extend the period within which a recovery plan must be made. Only one extension can be granted for the making of the plan, and the period of the extension must not be more than 3 years.

Ensuring recovery plan is in force

(3) Once the first recovery plan for a listed threatened species or a listed threatened ecological community is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a recovery plan is in force for the species or community until

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the Minister decides under section 269AA not to have a recovery plan for the species or community.

Note: The Minister may revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community. See section 283A.

Deadline for threat abatement plan

(4) A threat abatement plan for a key threatening process must be made and in force within 3 years of the decision under section 270A to have the plan.

Ensuring threat abatement plan is in force

(5) Once the first threat abatement plan for a key threatening process is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a threat abatement plan is in force for the process until the Minister decides under section 270A not to have a threat abatement plan for the process.

Note: The Minister may revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process. See section 283A.

274 Scientific Committee to advise on plans

(1)

The Minister must obtain and consider the advice of the Scientific Committee on:

(a)

the content of recovery and threat abatement plans; and

(b)

the times within which, and the order in which, such plans should be made.

(2)

In giving advice about a recovery plan, the Scientific Committee must take into account the following matters:

(a)

the degree of threat to the survival in nature of the species or ecological community in question;

(b)

the potential for the species or community to recover;

(c)

the genetic distinctiveness of the species or community;

(d)

the importance of the species or community to the ecosystem;

(e)

the value to humanity of the species or community;

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(f) the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

(3) In giving advice about a threat abatement plan, the Scientific Committee must take into account the following matters:

(a)

the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

(b)

the potential of species and ecological communities so threatened to recover;

(c)

the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

275 Consultation on plans

(1)

Before making a recovery plan or threat abatement plan under this Subdivision, the Minister must:

(a)

take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self-governing territory; and

(b)

give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

(c)

cause the notice to be published:

(i)

in the Gazette; and

(ii)

in a daily newspaper that circulates generally in each State, and self-governing Territory, in which the relevant listed threatened native species, listed threatened ecological community or key threatening process occurs; and

(iii) in any other way required by the regulations (if any).

(2)

The notice must:

(a)

specify the places where copies of the proposed plan may be purchased; and

(b)

invite persons to make written comments about the proposed plan; and

(c)

specify:

(i)

an address for lodgment of comments; and

(ii)

a day by which comments must be made.

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(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

276 Consideration of comments

The Minister:

(a)

must, in accordance with the regulations (if any), consider all comments on a proposed recovery plan or threat abatement plan made in response to an invitation under section 275; and

(b)

may revise the plan to take account of those comments.

277 Adoption of State plans

(1)

The Minister must not adopt a plan as a recovery plan or a threat abatement plan under this Subdivision unless:

(a)

the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

(b)

the plan meets the requirements of section 270 or 271, as the case requires.

(2)

Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

278 Publication of plans

(1)

As soon as practicable after the Minister makes or adopts a recovery plan or a threat abatement plan under this Subdivision, the Minister must:

(a)

make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self-governing Territory; and

(b)

give notice of the making or adopting of each such plan; and

(c)

publish the notice:

(i)

in the Gazette; and

(ii)

in a daily newspaper that circulates generally in each State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2)

The notice must:

(a)

state that the Minister has made or adopted the plan; and

(b)

specify the day on which the plan comes into force; and

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(c) specify the places where copies of the plan may be purchased.

279 Variation of plans by the Minister

(1)

The Minister may, at any time, review a recovery plan or threat abatement plan that has been made or adopted under this Subdivision and consider whether a variation of it is necessary.

(2)

Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

(3)

If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7), vary the plan.

(4)

The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

(5)

Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(6)

If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self-governing Territory, or an agency of a State or self-governing Territory, the Minister must seek the co-operation of that State or Territory, or that agency, with a view to varying the plan.

(7)

Sections 275, 276 and 278 apply to the variation of a plan in the same way that those sections apply to the making of a recovery plan or threat abatement plan.

280 Variation by a State or Territory of joint plans and plans adopted by the Minister

(1) If a State or self-governing Territory varies a plan that:

(a)

the Minister has made jointly with the State or self-governing Territory, or an agency of the State or Territory; or

(b)

has been adopted by the Minister as a recovery plan or a threat abatement plan;

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the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

(2)

Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(3)

The Minister must not approve a variation unless satisfied that:

(a)

an appropriate level of consultation was undertaken in varying the plan; and

(b)

the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

(4)

If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

(5)

Section 278 applies to the variation of a plan in the same way that it applies to the making of a recovery plan or threat abatement plan.

281 Commonwealth assistance

(1)

The Commonwealth may give to a State or self-governing Territory, or to an agency of a State or a self-governing Territory, financial assistance, and any other assistance, to make or implement a recovery plan or a threat abatement plan.

(2)

The Commonwealth may give to a person (other than a State or a self-governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a recovery plan or a threat abatement plan.

(3)

The giving of assistance may be made subject to such conditions as the Minister thinks fit. The Minister is to have regard to the advice of the Scientific Committee under section 282 before determining those conditions.

282 Scientific Committee to advise on assistance

(1) The Scientific Committee is to advise the Minister on the conditions (if any) to which the giving of assistance under section 281 should be subject.

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(2)

In giving advice about assistance for making or implementing a recovery plan, the Scientific Committee must take into account the following matters:

(a)

the degree of threat to the survival in nature of the species or ecological community in question;

(b)

the potential for the species or community to recover;

(c)

the genetic distinctiveness of the species or community;

(d)

the importance of the species or community to the ecosystem;

(e)

the value to humanity of the species or community;

(f)

the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

(3)

In giving advice about assistance for making or implementing threat abatement plan, the Scientific Committee must take into account the following matters:

(a)

the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

(b)

the potential of species and ecological communities so threatened to recover;

(c)

the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

283 Plans may cover more than one species etc.

(1)

A recovery plan made or adopted under this Subdivision may deal with one or more listed threatened species and/or one or more listed ecological communities.

(2)

A threat abatement plan made or adopted under this Subdivision may deal with one or more key threatening processes.

283A Revoking a plan

(1) The Minister may, by legislative instrument:

(a) revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community; or

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(b) revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process.

(2) The Minister must publish in accordance with the regulations (if any):

(a)

the instrument revoking the plan; and

(b)

the Minister’s reasons for revoking the plan.

284 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the making and adoption under this Subdivision of each recovery plan and threat abatement plan during the year to which the report relates.

Subdivision B—Wildlife conservation plans

285 Wildlife conservation plans

(1)

Subject to this section, the Minister may make, by instrument in writing, and implement a wildlife conservation plan for the purposes of the protection, conservation and management of the following:

(a)

a listed migratory species that occurs in Australia or an external Territory;

(b)

a listed marine species that occurs in Australia or an external Territory;

(c)

a species of cetacean that occurs in the Australian Whale Sanctuary;

(d)

a conservation dependent species.

(2)

The Minister must not make a wildlife conservation plan for a species that is a listed threatened species (except a conservation dependent species).

(3)

Subject to section 292, the Minister may, by instrument in writing, adopt a plan that has been made by a State or a self-governing Territory, or by an agency of a State or self-governing Territory, as a wildlife conservation plan. The Minister may adopt a plan with such modifications as are specified in the instrument.

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(4)

A plan, as modified and adopted under subsection (2), has effect as if the plan had been made by the Minister under subsection (1).

(5)

The Minister must seek the co-operation of the States and self-governing Territories in which:

(a)

a listed migratory species occurs; or

(b)

a listed marine species occurs; or

(c)

a species of cetacean occurs; or

(d)

a conservation dependent species occurs; with a view to making and implementing jointly with those States and Territories, or agencies of those States or Territories, a joint

wildlife conservation plan unless the species occurs only in a Commonwealth area.

(6)

Before making a wildlife conservation plan under subsection (1) or (5), the Minister must:

(a)

consider the advice of the Scientific Committee given under section 289; and

(b)

consult about the plan in accordance with sections 290 and

291.

(7)

A wildlife conservation plan comes into force on the day on which it is made or adopted, or on such later day as the Minister specifies in writing.

286 Acting in accordance with wildlife conservation plans

A Commonwealth agency must take all reasonable steps to act in accordance with a wildlife conservation plan.

287 Content of wildlife conservation plans

(1)

A wildlife conservation plan must provide for the research and management actions necessary to support survival of the migratory species, marine species, species of cetacean or conservation dependent species concerned.

(2)

In particular, a wildlife conservation plan must:

(a)

state the objectives to be achieved; and

(b)

state criteria against which achievement of the objectives is to be measured; and

(c)

specify the actions needed to achieve the objectives; and

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(d)

identify the habitats of the species concerned and the actions needed to protect those habitats; and

(e)

identify:

(i)

interests that will be affected by the plan’s implementation; and

(ii)

organisations or persons who will be involved in evaluating the performance of the plan; and

(f)

specify any major benefits to migratory species, marine species, species of cetacean or conservation dependent species (other than those to which the plan relates) that will be affected by the plan’s implementation; and

(g)

meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

(3) In making a wildlife conservation plan, regard must be had to:

(a)

the objects of this Act; and

(b)

the most efficient and effective use of the resources that are allocated for the conservation of migratory species, marine species, species of cetacean and conservation dependent species; and

(c)

minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

(d)

meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the migratory species, marine species, species of cetacean or conservation dependent species to which the plan relates; and

(e)

the role and interests of indigenous people in the conservation of Australia’s biodiversity.

288 Eradication of non-native species

If:

(a)

the actions specified under section 287 in a wildlife conservation plan include the eradication of a non-native species; and

(b)

the species is threatened in a country in which its native habitat occurs;

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the wildlife conservation plan must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

289 Scientific Committee to advise on scheduling of plans

(1) The Minister may seek advice from the Scientific Committee on the need for wildlife conservation plans and the order in which they should be made.

(1A) The Scientific Committee may advise the Minister on its own initiative to make a wildlife conservation plan for a specified species described in subsection 285(1).

(2)

In giving advice under subsection (1) or (1A), the Scientific Committee must take into account the resources available for making plans.

(3)

Before making a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

290 Consultation on plans

(1)

Before making a wildlife conservation plan under subsection 285(1) or (5), the Minister must:

(a)

take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self-governing Territory; and

(b)

give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

(c)

cause the notice to be published:

(i)

in the Gazette; and

(ii)

in a daily newspaper that circulates generally in each State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2)

The notice must:

(a)

specify the places where copies of the proposed plan may be purchased; and

(b)

invite persons to make written comments about the proposed plan; and

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(c) specify:

(i)

an address for lodgment of comments; and

(ii)

a day by which comments must be made.

(3) The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

291 Consideration of comments

The Minister:

(a)

must, in accordance with the regulations (if any), consider all comments on a proposed wildlife conservation plan made in response to an invitation under section 290; and

(b)

may revise the plan to take account of those comments.

292 Adoption of State plans

(1)

The Minister must not adopt a plan as a wildlife conservation plan under subsection 285(3) unless:

(a)

the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

(b)

the plan meets the requirements of section 287.

(2)

Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

293 Publication, review and variation of plans

(1)

As soon as practicable after the Minister makes or adopts a wildlife conservation plan under section 285, the Minister must:

(a)

make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self-governing Territory; and

(b)

give notice of the making or adoption of each such plan; and

(c)

publish the notice:

(i)

in the Gazette; and

(ii)

in a daily newspaper that circulates generally in each State, and self-governing Territory; and

(iii) in any other way required by the regulations (if any).

(2)

The notice must:

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Section 294

(a)

state that the Minister has made or adopted the plan; and

(b)

specify the day on which the plan comes into force; and

(c)

specify the places where copies of the plan may be purchased.

294 Variation of plans by the Minister

(1)

The Minister may, at any time, review a wildlife conservation plan that has been made or adopted under section 285 and consider whether a variation of it is necessary.

(2)

Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

(3)

If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7) vary the plan.

(4)

The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 287.

(5)

Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(6)

If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self-governing Territory, or an agency of a State or self-governing Territory, the Minister must seek the co-operation of that State or Territory, or that agency, with a view to varying the plan.

(7)

Sections 290, 291 and 293 apply to the variation of a plan in the same way that those sections apply to the making of a wildlife conservation plan.

295 Variation by a State or Territory of joint plans and plans adopted by the Minister

(1) If a State or self-governing Territory varies a plan that:

(a)

the Minister has made jointly with the State or self-governing Territory, or an agency of the State or Territory; or

(b)

has been adopted by the Minister as a wildlife conservation plan;

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Section 296

the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

(2)

Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

(3)

The Minister must not approve a variation under subsection (1) unless satisfied:

(a)

an appropriate level of consultation was undertaken in varying the plan; and

(b)

the plan, as so varied, continues to meet the requirements of section 287.

(4)

If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

(5)

Section 293 applies to the variation of a plan in the same way that it applies to the making of a wildlife conservation plan.

296 Commonwealth assistance

(1)

The Commonwealth may give to a State or self-governing Territory, or to an agency of a State or a self-governing Territory, financial assistance, and any other assistance, to make a wildlife conservation plan.

(2)

The Commonwealth may give to a person (other than a State or a self-governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a wildlife conservation plan.

(3)

The giving of assistance may be made subject to such conditions as the Minister thinks fit.

297 Plans may cover more than one species etc.

A wildlife conservation plan made or adopted under this Subdivision may deal with all or any of the following:

(a)

one or more listed migratory species;

(b)

one or more listed marine species;

(c)

one or more species of cetacean;

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(d) one or more conservation dependent species.

298 Reports on preparation and implementation of plans

The Secretary must include in each annual report a report on the making and adoption under section 285 of each wildlife conservation plan during the year to which the report relates.

Subdivision C—Miscellaneous

299 Wildlife conservation plans cease to have effect

If:

(a)

a wildlife conservation plan is in force for all or any of the following:

(i)

a listed migratory species;

(ii)

a listed marine species;

(iii) a species of cetacean; and

(b)

the species becomes a listed threatened species (except a

conservation dependent species); the wildlife conservation plan ceases to have effect in relation to the species on and from the day on which the species becomes a listed threatened species as mentioned in paragraph (b).

300 Document may contain more than one plan

(1)

All or any of the plans made under this Division may be included in the same document.

(2)

All or any of the plans adopted under this Division may be included in the same instrument of adoption.

300A State and Territory laws not affected

Sections 269A, 270A, 270B, 273 and 285 do not exclude or limit the concurrent operation of a law of a State or self-governing Territory.

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Section 300B

300B Assistance from the Scientific Committee

(1)

The Minister may, at any time, ask the Scientific Committee to provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A.

(2)

The Scientific Committee may, at any time, provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A (whether or not the Committee is acting in response to a request under subsection (1) of this section).

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Subdivision A—CITES species and CITES specimens

303CA Listing of CITES species

(1)

The Minister must, by instrument published in the Gazette, establish a list of CITES species for the purposes of this Act.

(2)

The Minister must ensure that the list is established on the commencement of this section.

Note: See section 4 of the Acts Interpretation Act 1901.

(3)

The list must include all species from time to time included in any of Appendices I, II and III to CITES. The list must not include any other species.

(4)

For each species included in the list, there is to be a notation:

(a)

describing the specimens belonging to that species that are included in a particular Appendix to CITES; and

(b)

identifying the Appendix in which the species is included; and

(c)

identifying the date on which the provisions of CITES first applied to the specimens.

(5)

A description mentioned in paragraph (4)(a):

(a)

may cover all specimens that belong to the species; or

(b)

may cover specified kinds of specimens that belong to the species; or

(c)

may state that the inclusion of a specimen in a particular Appendix to CITES is subject to restrictions or conditions.

(6)

A restriction or condition mentioned in paragraph (5)(c) may:

(a)

impose a quantitative limit in relation to the export or import of a specimen; or

(b)

relate to the imposition of a quota in relation to the export or import of specimens; or

(c)

relate to a particular population of a species; or

(d)

reflect any other restriction or condition set out in the relevant Appendix to CITES.

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Section 303CB

(7)

Subsection (6) does not limit paragraph (5)(c).

(8)

A notation in the list is to be consistent with CITES.

(9)

The Minister may, by instrument published in the Gazette:

(a)

correct an inaccuracy or update the name of a species; or

(b)

amend the list, as necessary, so that it includes all species required to be included in the list under subsection (3); or

(c)

amend the list, as necessary, so that the notations in the list are consistent with CITES.

(10)

A copy of an instrument under subsection (1) or (9) is to be made available for inspection on the internet.

(11)

For the purposes of this section, it is to be assumed that the definition of specimen in CITES includes a reference to a thing that is a specimen for the purposes of this Act.

Note: See also section 303CB.

303CB Stricter domestic measures

(1) The Minister may, by instrument published in the Gazette, declare that the list referred to in section 303CA has effect as if it were modified as set out in the declaration.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The Minister must not make a declaration under subsection (1) unless:

(a)

the modification has the effect of treating a specified specimen that is included in Appendix II to CITES as if the specimen were included in Appendix I to CITES; or

(b)

the modification has the effect of broadening the range of specimens included in a specified Appendix to CITES in relation to a specified species; or

(c)

the modification has the effect of decreasing a quantitative limit in relation to the export or import of a specimen; or

(d)

the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix I to CITES; or

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(e) the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix II to CITES.

(3)

An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(4)

A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

(5)

A reference in this Act to the list referred to in section 303CA is a reference to that list as modified under this section.

Subdivision B—Offences and permit system

303CC Exports of CITES specimens

(1) A person is guilty of an offence if:

(a)

the person exports a specimen; and

(b)

the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Authorised export—permit

(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.

Authorised export—CITES exemptions

(3)

Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non-commercial exchange of scientific specimens between scientific organisations.

(4)

Subsection (1) does not apply if the Minister issues a certificate under subsection (5) in relation to the specimen.

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Section 303CD

(5)

If the Minister is satisfied that a specimen was acquired before the provisions of CITES applied to the specimen, the Minister may issue a certificate to that effect.

(6)

Subsection (1) does not apply if the export of the specimen is an export that, under the regulations, is taken to be an export of a personal or household effect.

Note 1: See paragraph 3 of Article VII of CITES.

Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4) and (6) (see subsection 13.3(3) of the Criminal Code).

303CD Imports of CITES specimens

(1) A person is guilty of an offence if:

(a)

the person imports a specimen; and

(b)

the specimen is a CITES specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Authorised import—permit

(2) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.

Authorised import—CITES exemptions

(3) Subsection (1) does not apply if the import of the specimen is an import that, under the regulations, is taken to be an import of a personal or household effect.

Note: See paragraph 3 of Article VII of CITES.

(4) Subsection (1) does not apply if:

(a)

the specimen is a CITES II specimen; and

(b)

the specimen is not a live specimen; and

(c)

the specimen belongs to a species that is not specified in the regulations; and

(d)

in a case where a quantitative limit is applicable to the specimen under a notation in the list referred to in

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section 303CA—the quantity of the specimen does not exceed that limit; and

(e)

the specimen is within the personal baggage of a person entering Australia or an external Territory; and

(f)

the specimen is not intended for sale or for any other commercial purpose; and

(g)

both:

(i)

the country from which the specimen is proposed to be imported has a relevant CITES authority; and

(ii)

permission to export the specimen from that country has been given by a relevant CITES authority of that country.

(5)

Subsection (1) does not apply if the import of the specimen is an import that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non-commercial exchange of scientific specimens between scientific organisations.

(6)

Subsection (1) does not apply if:

(a)

the country from which the specimen is proposed to be imported has a relevant CITES authority; and

(b)

a relevant CITES authority of that country has issued a certificate under paragraph 2 of Article VII of CITES in respect of the specimen.

Note 1: Paragraph 2 of Article VII of CITES deals with a specimen that was acquired before the provisions of CITES applied to the specimen.

Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4), (5) and (6) (see subsection 13.3(3) of the Criminal Code).

303CE Applications for permits

(1)

A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303CG.

(2)

The application must be accompanied by the fee (if any) prescribed by the regulations.

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Section 303CF

303CF Further information

(1)

The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.

(2)

The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303CG Minister may issue permits

(1)

The Minister may, on application made by a person under section 303CE, issue a permit to the person. This subsection has effect subject to subsection (3).

(2)

A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303CC, 303CD, 303DD or 303EK.

(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.

(3) The Minister must not issue a permit unless the Minister is satisfied that:

(a)

the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to:

(i)

the survival of any taxon to which the specimen belongs; or

(ii)

the recovery in nature of any taxon to which the specimen belongs; or

(iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(b)

the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

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(c)

if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

(d)

if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA—that restriction or condition has been, or is likely to be, complied with; and

(e)

if the permit authorises the export of a CITES specimen:

(i)

the proposed export would be an eligible non-commercial purpose export (within the meaning of section 303FA); or

(ii)

the relevant conditions set out in the table in section 303CH have been met; and

(f)

if the permit authorises the import of a CITES specimen:

(i)

the proposed import would be an eligible non-commercial purpose import (within the meaning of section 303FB); or

(ii)

the relevant conditions set out in the table in section 303CH have been met; and

(g)

if:

(i)

the permit authorises the import of a CITES II specimen; and

(ii)

the proposed import would be an eligible non-commercial purpose import (within the meaning of section 303FB);

the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and

(h)

if the permit authorises the export of a CITES specimen that is a regulated native specimen—the conditions set out in subsection 303DG(4) have been met; and

(i)

if the permit authorises the import of a CITES specimen that is a regulated live specimen—the conditions set out in subsection 303EN(3) have been met.

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Section 303CH

(4)

Subsection (3) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.

(5)

The Minister must not issue a permit to export a specimen (other than a live animal) that has been imported into Australia or an external Territory, unless the Minister is satisfied that:

(a)

the specimen was lawfully imported (section 303GY); and

(b)

if the specimen is a CITES I specimen:

(i)

the country to which the specimen is proposed to be exported has a relevant CITES authority; and

(ii)

permission to import that specimen into that country has been given by a relevant CITES authority of that country.

(6)

This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a non-Part 13A permit is required.

303CH Specific conditions relating to the export or import of CITES specimens for commercial purposes

(1) The following table sets out the conditions mentioned in paragraphs 303CG(3)(e) and (f):

Specific conditions
Item	Category of specimen	Action	Specific conditions
1	CITES I	Import	(a) the proposed import would be an import from an approved CITES-registered captive breeding program in accordance with section 303FK; or
			(b) the specimen is, or is derived from, a plant that was artificially propagated (section 527C).

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Specific conditions
Item Category of Action Specific conditions
specimen
2 CITES I Export (a) the specimen is not a live native mammal, a
live native amphibian, a live native reptile or a
live native bird; and
(b) the country to which the specimen is proposed
to be exported has a relevant CITES authority,
and permission to import that specimen into
that country has been given by a relevant
CITES authority of that country; and
(c) the proposed export would be an export from:
(i) an approved CITES-registered captive
breeding program in accordance with
section 303FK; or
(ii) an approved artificial propagation
program in accordance with
section 303FL.
3 CITES II Import (a) for any specimen—the country from which the
specimen is proposed to be imported has a
relevant CITES authority and permission to
export the specimen from that country has
been given by a relevant CITES authority of
that country; and
(b) for a specimen that:
(i) is specified by the Minister in a notice
published in the Gazette to be a
declared specimen; and
(ii) is not, or is not derived from, an animal
that was bred in captivity
(section 527B); and
(iii) is not, or is not derived from, a plant
that was artificially propagated
(section 527C);
the proposed import of the specimen would be
an import from an approved commercial
import program in accordance with
section 303FU.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 2 CITES species

Section 303CH

Specific conditions
Item Category of Action Specific conditions
specimen
4 CITES II Export (a) the specimen is not a live native mammal, a
live native amphibian, a live native reptile or a
live native bird; and
(b) the proposed export of the specimen would be:
(i) an export from an approved captive
breeding program in accordance with
section 303FK; or
(ii) an export from an approved artificial
propagation program in accordance
with section 303FL; or
(iia) an export from an approved
cultivation program in accordance with
section 303FLA; or
(iii) an export in accordance with an
approved wildlife trade operation
(section 303FN); or
(iv) an export in accordance with an
approved wildlife trade management
plan (section 303FO).
5 CITES III Import The country from which the specimen is proposed
to be imported has a relevant CITES authority,
and permission to export the specimen from that
country has been given by a relevant CITES
authority of that country.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A CITES species Division 2

Specific conditions
Item Category of	Action	Specific conditions
specimen
6 CITES III	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a
		live native bird; and
		(b) the proposed export of the specimen would be:
		(i) an export from an approved captive
		breeding program in accordance with
		section 303FK; or
		(ii) an export from an approved artificial
		propagation program in accordance
		with section 303FL; or
		(iia) an export from an approved
		cultivation program in accordance with
		section 303FLA; or
		(iii) an export in accordance with an
		approved wildlife trade operation
		(section 303FN); or
		(iv) an export in accordance with an
		approved wildlife trade management
		plan (section 303FO).

(2) A notice made under subparagraph (b)(i) of item 3 in the table in subsection (1) is not a legislative instrument.

303CI Time limit for making permit decision

If an application for a permit is made under section 303CE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:

(a)

the day on which the application is made;

(b)

if a request for further information in relation to the application is made under section 303CF—the day on which the applicant complies with the request;

(c)

if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 2 CITES species

Section 303CJ

303CJ Duration of permits

A permit under section 303CG:

(a)

comes into force on the date on which it is issued; and

(b)

unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i)

the permitted period (within the meaning of subsection 303CG(2A));

(ii)

each period for which one or more conditions of the permit are expressed to apply.

303CK Register of applications and decisions

(1)

As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:

(a)

prescribed particulars of applications made under section 303CE after the establishment of the register; and

(b)

prescribed particulars of decisions made by the Minister under section 303CG after the establishment of the register.

(2)

The register may be maintained by electronic means.

(3)

The register is to be made available for inspection on the internet.

Subdivision C—Application of CITES

303CL Application of CITES—Management Authority and Scientific Authority

For the purposes of the application of CITES to Australia:

(a)

the Minister is the Management Authority; and

(b)

the Secretary is the Scientific Authority.

303CM Interpretation of CITES provisions

(1) Except so far as the contrary intention appears, an expression that:

(a)

is used in the CITES provisions without definition; and

(b)

is used in CITES (whether or not it is defined in, or a

particular meaning is assigned to it by, CITES); has, in the CITES provisions, the same meaning as it has in CITES.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A CITES species Division 2

(2) For the purposes of subsection (1), the CITES provisions consist of:

(a)

this Division; and

(b)

any other provision of this Act in so far as that other provision relates to, or to permits under, this Division.

303CN Resolutions of the Conference of the Parties to CITES

(1)

In making a decision under this Part in relation to a CITES specimen, the Minister may have regard to a relevant resolution of the Conference of the Parties under Article XI of CITES.

(2)

Subsection (1) applies to a resolution, whether made before or after the commencement of this section.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 3 Exports of regulated native specimens

Section 303DA

Subdivision A—Regulated native specimens

303DA Regulated native specimens

For the purposes of this Act, a regulated native specimen is a specimen that:

(a)

is, or is derived from, a native animal or a native plant; and

(b)

is not included in the list referred to in section 303DB.

303DB Listing of exempt native specimens

(1)

The Minister must, by instrument published in the Gazette, establish a list of exempt native specimens.

(2)

For each specimen included in the list, there is to be a notation that states whether the inclusion of the specimen in the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.

(3)

A restriction or condition mentioned in subsection (2) may:

(a)

consist of a quantitative limit in relation to the export of the specimen; or

(b)

relate to the circumstances of the export of the specimen; or

(c)

relate to the source of the specimen; or

(d)

relate to the circumstances in which the specimen was taken or, if the specimen is derived from another specimen that was taken, the circumstances in which the other specimen was taken; or

(e)

relate to an expiry date for the inclusion of the specimen on the list.

(4)

Subsection (3) does not limit subsection (2).

(5)

The list, as first established, must:

(a) contain the specimens referred to in Part I of Schedule 4 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section; and

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Exports of regulated native specimens Division 3

(b) reflect the restrictions and conditions that are applicable to the inclusion of those specimens in that Part of that Schedule.

(6) The list must not include a specimen that belongs to an eligible listed threatened species unless:

(a) the Minister is satisfied that the export of the specimen will not:

(i)

adversely affect the conservation status of the species concerned; and

(ii)

be inconsistent with any recovery plan or wildlife conservation plan for that species; and

(aa) the Minister has had regard to any approved conservation advice for that species; and

(b) the inclusion of the specimen on the list is subject to a restriction or condition to the effect that:

(i)

the specimen must be, or be derived from, a plant that was artificially propagated (section 527C); and

(ii)

the specimen was propagated in an operation that has derived its stock in a way that did not breach a law of the Commonwealth, a State or a Territory.

(7) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

303DC Minister may amend list

(1) The Minister may, by instrument published in the Gazette, amend the list referred to in section 303DB by:

(a)

including items in the list; or

(b)

deleting items from the list; or

(c)

imposing a condition or restriction to which the inclusion of a specimen in the list is subject; or

(d)

varying or revoking a condition or restriction to which the inclusion of a specimen in the list is subject; or

(e)

correcting an inaccuracy or updating the name of a species.

(1A) In deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 3 Exports of regulated native specimens

Section 303DD

(1B) Subsection (1A) does not apply to an amendment mentioned in paragraph (1)(e).

(1C) Subsection (1A) does not limit the matters that may be taken into account in deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery.

(1D) In this section:

fishery has the same meaning as in section 303FN.

(2)

For the purposes of paragraph (1)(e), correcting an inaccuracy includes ensuring that the list complies with subsection 303DB(5).

(3)

Before amending the list referred to in section 303DB as mentioned in paragraph (1)(a), (b), (c) or (d) of this section, the Minister:

(a)

must consult such other Minister or Ministers as the Minister considers appropriate; and

(b)

must consult such other Minister or Ministers of each State and self-governing Territory as the Minister considers appropriate; and

(c)

may consult such other persons and organisations as the Minister considers appropriate.

(4)

An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(e)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5)

A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

Subdivision B—Offence and permit system

303DD Exports of regulated native specimens

(1) A person is guilty of an offence if:

(a)

the person exports a specimen; and

(b)

the specimen is a regulated native specimen.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Exports of regulated native specimens Division 3

Exemption—permit

(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303DG, 303GB or 303GC and is in force.

Exemption—accredited wildlife trade management plan

(3) Subsection (1) does not apply if:

(a)

the export of the specimen would be an export in accordance with an accredited wildlife trade management plan (section 303FP); and

(b)

the specimen is not a live native mammal, a live native

reptile, a live native amphibian or a live native bird; and (ba) either:

(i)

the specimen is not a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of this subparagraph; or

(ii)

the export is an export from an approved aquaculture program in accordance with section 303FM; and

(c)

the specimen is not a CITES specimen; and

(d)

the specimen does not belong to an eligible listed threatened species.

Exemption—exchange of scientific specimens

(4) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non-commercial exchange of scientific specimens between scientific organisations.

Note: The defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal Code).

303DE Applications for permits

(1)

A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303DG.

(2)

The application must be accompanied by the fee (if any) prescribed by the regulations.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 3 Exports of regulated native specimens

Section 303DF

303DF Further information

(1)

The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.

(2)

The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.

303DG Minister may issue permits

(1)

The Minister may, on application made by a person under section 303DE, issue a permit to the person. This subsection has effect subject to subsections (3) to (4A).

(2)

A permit authorises its holder to take the action or actions specified in the permit, in the permitted period, without breaching section 303DD.

(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 3 years after that date.

(3) The Minister must not issue a permit authorising the export of a live native mammal, a live native reptile, a live native amphibian or a live native bird unless the Minister is satisfied that the proposed export would be an eligible non-commercial purpose export (within the meaning of section 303FA).

(3A) The Minister must not issue a permit authorising the export of a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of paragraph 303DD(3)(ba) unless the Minister is satisfied that:

(a)

the proposed export would be an eligible non-commercial purpose export (within the meaning of section 303FA); or

(b)

the proposed export would be an export from an approved aquaculture program in accordance with section 303FM.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Exports of regulated native specimens Division 3

(4) The Minister must not issue a permit unless the Minister is satisfied that:

(a)

the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:

(i)

the survival of any taxon to which the specimen belongs; or

(ii)

any relevant ecosystem (for example, detriment to habitat or biodiversity); and

(b)

if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

(c)

the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

(d)

if the specimen belongs to an eligible listed threatened species—the export of the specimen is covered by subsection (7) or (8), and the export would not be inconsistent with any recovery plan for that species; and

(e)

if the specimen does not belong to an eligible listed threatened species:

(i)

the proposed export would be an eligible non-commercial purpose export (within the meaning of section 303FA); or

(ii)

the proposed export would be an eligible commercial purpose export (within the meaning of section 303FJ).

(4A) If the Minister is considering whether to issue a permit relating to a specimen that belongs to a particular eligible listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species.

(5)

Subsection (4) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.

(6)

The Minister must not issue a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be,

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 3 Exports of regulated native specimens

Section 303DG

unless the Minister is satisfied that the specimen was lawfully imported (section 303GY).

Eligible listed threatened species

(7) This subsection covers the export of a specimen if:

(a)

the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or

(b)

the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or

(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or

(c) the export of the specimen would be an export from an approved aquaculture program in accordance with section 303FM;

and the export of the specimen will not adversely affect the conservation status of the species concerned.

Note: See also subsection (3).

(8) This subsection covers the export of a specimen if:

(a)

the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or

(b)

the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or

(c)

the export of the specimen would be an export for the purposes of exhibition in accordance with section 303FE; or

(d)

the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF.

Section has effect subject to section 303GA

(9) This section has effect subject to section 303GA.

Note: Section 303GA deals with controlled actions, and actions for which a non-Part 13A permit is required.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Exports of regulated native specimens Division 3

303DH Time limit for making permit decision

If an application for a permit is made under section 303DE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:

(a)

the day on which the application is made;

(b)

if a request for further information in relation to the application is made under section 303DF—the day on which the applicant complies with the request;

(c)

if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).

303DI Duration of permits

A permit under section 303DG:

(a)

comes into force on the date on which it is issued; and

(b)

unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i)

the permitted period (within the meaning of subsection 303DG(2A));

(ii)

each period for which one or more conditions of the permit are expressed to apply.

303DJ Register of applications and decisions

(1)

As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:

(a)

prescribed particulars of applications made under section 303DE after the establishment of the register; and

(b)

prescribed particulars of decisions made by the Minister under section 303DG after the establishment of the register.

(2)

The register may be maintained by electronic means.

(3)

The register is to be made available for inspection on the internet.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 4 Imports of regulated live specimens

Section 303EA

Subdivision A—Regulated live specimens

303EA Regulated live specimens

For the purposes of this Act, a regulated live specimen is a specimen that:

(a)

is a live animal or a live plant; and

(b)

is not included in Part 1 of the list referred to in section 303EB.

303EB Listing of specimens suitable for live import

(1)

The Minister must, by instrument published in the Gazette, establish a list of specimens that are taken to be suitable for live import.

(2)

The list is to be divided into 2 Parts, as follows:

(a)

Part 1 is to be a list of unregulated specimens;

(b)

Part 2 is to be a list of allowable regulated specimens.

(3)

The list may only contain specimens that are live animals or live plants.

(4)

Part 1 of the list, as first established, must contain only the specimens referred to in Part I of Schedule 5 or Part I of Schedule 6 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.

(5)

Part 1 of the list must not contain a CITES specimen.

(6)

Part 1 of the list is taken to include a live plant the introduction of which into Australia is in accordance with the Quarantine Act 1908.

(7)

For each specimen included in Part 2 of the list (except a specimen referred to in subsection (11A)), there is to be a notation that states whether the inclusion of the specimen in that part of the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Imports of regulated live specimens Division 4

(8)

A restriction or condition referred to in subsection (7) may:

(a)

consist of a quantitative limit in relation to the import of the specimen; or

(b)

relate to the circumstances of the import of the specimen; or

(c)

relate to the source of the specimen; or

(d)

relate to the circumstances in which the specimen was taken.

(9)

Subsection (8) does not limit subsection (7).

(10)

Part 2 of the list, as first established, must contain only specimens that were, at any time before the commencement of this section, the subject of an import permit granted under the Wildlife Protection (Regulation of Exports and Imports) Act 1982.

(11)

For the purposes of subsection (10), a specimen is taken to have been the subject of an import permit if, and only if, the specimen was identified in the permit at the species or sub-species level.

(11A) Part 2 of the list is taken to include a live plant that:

(a)

is a CITES specimen; and

(b)

is introduced into Australia in accordance with the Quarantine Act 1908.

(12) A copy of an instrument under subsection (1) is to be made available for inspection on the internet.

303EC Minister may amend list

(1)

The Minister may, by instrument published in the Gazette, amend the list referred to in section 303EB by:

(a)

including items in a particular part of the list; or

(b)

deleting items from a particular part of the list; or

(c)

correcting an inaccuracy or updating the name of a species; or

(d)

imposing a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject; or

(e)

varying or revoking a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject.

(2)

For the purposes of paragraph (1)(c), correcting an inaccuracy includes ensuring that the list complies with subsections 303EB(4) and (10).

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 4 Imports of regulated live specimens

Section 303ED

(3)

Before amending the list referred to in section 303EB as mentioned in paragraph (1)(a), (b), (d) or (e) of this section, the Minister:

(a)

must consult such other Minister or Ministers as the Minister considers appropriate; and

(b)

must consult such other Minister or Ministers of each State and self-governing Territory as the Minister considers appropriate; and

(c)

may consult such other persons and organisations as the Minister considers appropriate.

(4)

An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5)

The Minister must not amend the list referred to in section 303EB by including an item in the list, unless:

(a)

the amendment is made following consideration of a relevant report under section 303ED or 303EE; or

(b)

the amendment is made following consideration of a relevant review under section 303EJ.

(6)

A copy of an instrument under subsection (1) is to be made available for inspection on the internet.