Loi n° 91 de 1999 sur la protection de l'environnement et la biodiversité (version consolidée du 23 septembre 2003), Australie

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.

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(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.

269A Making or adopting a recovery plan

Ensuring recovery plan is always in force

(1) The Minister must exercise his or her powers under this section to ensure that there is always in force a recovery plan for:

(a)

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

(b)

each listed threatened ecological community;

once the first recovery plan for the species or community has come into force.

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.

Note: Section 273 requires recovery plans to be made and in force by certain deadlines.

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 the States and self-governing Territories in which the species or community occurs, or with agencies of those States and Territories.

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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, 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.

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 to make the plan under subsection (3):

(a)

with each of the States and self-governing Territories in which the species or community occurs; and

(b)

in the case of a species or ecological community that occurs partly inside and partly outside a Commonwealth area— within the time required by subsection 273(2).

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

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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.

(2)

In particular, a recovery plan must:

(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

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(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).

(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

(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

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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;

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

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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.

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.

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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

(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:

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(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.

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

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(c)

specify the actions needed to achieve the objectives; and

(d)

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

(e)

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

(f)

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; 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.

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;

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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.

Recovery plan for species and communities in Commonwealth

areas only

(1) A recovery plan for a listed threatened species or listed threatened ecological community that occurs only in Commonwealth areas must be made and come into force:

(a)

in the case of a native species listed in Schedule 1 to the Endangered Species Protection Act 1992, for which a recovery plan under that Act was not in force immediately before the commencement of this Act—within the remainder of the period allowed by section 36 of that Act for the preparation of the plan for that species; or

(b)

in the case of a listed threatened species (other than a native species mentioned in paragraph (a)) in:

(i)

the critically endangered category—within 2 years after the species in question became included in that category; or

(ii)

the endangered category or the extinct in the wild category—within 3 years after the species in question became included in that category; or

(iii) the vulnerable category—within 5 years after the species in question became included in that category; or

(c)

in the case of an ecological community (if any) listed in Schedule 2 to the Endangered Species Protection Act 1992, for which a recovery plan under that Act was not in force immediately before the commencement of this Act—within

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the remainder of the period allowed by section 36 of that Act for the preparation of the plan for that community; or

(d) in the case of a listed threatened ecological community (other than a community mentioned in paragraph (c)) in:

(i)

the critically endangered category—within 2 years after the community in question became included in that category; or

(ii)

the endangered category—within 3 years after the community in question became included in that category; or

(iii) the vulnerable category—within 5 years after the community in question became included in that category.

Recovery plan for species and communities partly in Commonwealth areas

(2) A recovery plan for a listed threatened species or a listed threatened ecological community that occurs in and outside a Commonwealth area must be made:

(a)

in the case of a listed threatened species in:

(i)

the critically endangered category—within 2 years after the species in question became included in that category; or

(ii)

the endangered category or the extinct in the wild category—within 3 years after the species in question became included in that category; or

(iii) the vulnerable category—within 5 years after the species in question became included in that category; or

(b)

in the case of a listed threatened ecological community in:

(i)

the critically endangered category—within 2 years after the community in question became included in that category; or

(ii)

the endangered category—within 3 years after the community in question became included in that category; or

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(iii) the vulnerable category—within 5 years after the community in question became included in that category.

Recovery plan for species and communities wholly outside Commonwealth areas

(3) A recovery plan for a listed threatened species or listed threatened ecological community that occurs only outside Commonwealth areas must be made as soon as reasonably practicable after the species or ecological community is included in the list referred to in section 178 or 181 (as appropriate).

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:

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(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 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

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(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.

(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, review and variation 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:

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(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

(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

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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; 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,

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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.

(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;

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(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 threat abatement plan

(1)

The Minister may, by written instrument, 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 threat abatement 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

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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.

(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

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(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

(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).

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(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; 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).

Conservation of biodiversity and heritage Chapter 5 Species and communities Part 13 Plans Division 5

(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

(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.

Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 5 Plans

Section 291

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:

(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.

Conservation of biodiversity and heritage Chapter 5 Species and communities Part 13 Plans Division 5

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

Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 5 Plans

Section 296

(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;

Conservation of biodiversity and heritage Chapter 5 Species and communities Part 13 Plans Division 5

(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 a recovery plan takes effect for the species.

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.

Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 6 Access to biological resources

Section 301

Division 6—Access to biological resources

301 Control of access to biological resources

(1)

The regulations may provide for the control of access to biological resources in Commonwealth areas.

(2)

Without limiting subsection (1), the regulations may contain provisions about all or any of the following:

(a)

the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;

(b)

the facilitation of access to such resources;

(c)

the right to deny access to such resources;

(d)

the granting of access to such resources and the terms and conditions of such access.

Conservation of biodiversity and heritage Chapter 5 Species and communities Part 13 Control of non-native species Division 6A

Division 6A—Control of non-native species

301A Regulations for control of non-native species

The regulations may:

(a)

provide for the establishment and maintenance of a list of species, other than native species, whose members:

(i)

do or may threaten biodiversity in the Australian jurisdiction; or

(ii)

would be likely to threaten biodiversity in the Australian jurisdiction if they were brought into the Australian jurisdiction; and

(b)

regulate or prohibit the bringing into the Australian jurisdiction of members of a species included in the list mentioned in paragraph (a); and

(c)

regulate or prohibit trade in members of a species included in the list mentioned in paragraph (a):

(i)

between Australia and another country; or

(ii)

between 2 States; or

(iii) between 2 Territories; or

(iv)

between a State and a Territory; or

(v)

by a constitutional corporation; and

(d)

regulate and prohibit actions:

(i)

involving or affecting members of a species included in the list mentioned in paragraph (a); and

(ii)

whose regulation or prohibition is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries; and

(e)

provide for the making and implementation of plans to reduce, eliminate or prevent the impacts of members of species included in the list mentioned in paragraph (a) on biodiversity in the Australian jurisdiction.

Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 7 Aid for conservation of species in foreign countries

Section 302

Division 7—Aid for conservation of species in foreign countries

302 Aid for conservation of species in foreign countries

On behalf of the Commonwealth, the Minister may give financial assistance to the governments of foreign countries and organisations in foreign countries to help the recovery and conservation, in those countries, of species covered by international agreements to which Australia is a party.

Conservation of biodiversity and heritage Chapter 5 Species and communities Part 13 Miscellaneous Division 8

Division 8—Miscellaneous

303 Regulations

(1)

The regulations may make provision for the conservation of biodiversity in Commonwealth areas.

(2)

In particular, the regulations may prohibit or regulate actions affecting a member of a native species in a Commonwealth area. This does not limit subsection (1).

303A Exemptions from this Part

(1)

A person proposing to take an action that would contravene a provision of this Part apart from this section may apply in writing to the Minister for an exemption from the provision.

(2)

The Minister must decide within 20 business days of receiving the application whether or not to grant the exemption.

(3)

The Minister may, by written notice, exempt a specified person from the application of a specified provision of this Part in relation to a specified action.

(4)

The Minister may do so only if he or she is satisfied that it is in the national interest that the provision not apply in relation to the person or the action.

(5)

In determining the national interest, the Minister may consider Australia’s defence or security or a national emergency. This does not limit the matters the Minister may consider.

(6)

A provision specified in the notice does not apply in relation to the specified person or action on or after the day specified in the notice. The Minister must not specify a day earlier than the day the notice is made.

Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 8 Miscellaneous

Section 303A

(7) Within 10 business days after making the notice, the Minister must:

(a)

publish a copy of the notice and his or her reasons for granting the exemption in accordance with the regulations; and

(b)

give a copy of the notice to the person specified in the notice.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Introduction Division 1

Part 13A—International movement of wildlife specimens

Division 1—Introduction

303BA Objects of Part

(1) The objects of this Part are as follows:

(a)

to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;

(b)

to protect wildlife that may be adversely affected by trade;

(c)

to promote the conservation of biodiversity in Australia and other countries;

(d)

to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;

(e)

to promote the humane treatment of wildlife;

(f)

to ensure ethical conduct during any research associated with the utilisation of wildlife;

(h)

to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.

Note: CITES means the Convention on International Trade in Endangered Species—see section 528.

(2) In order to achieve its objects, this Part includes special provisions to conserve the biodiversity of Australian native wildlife.

303BAA Certain indigenous rights not affected

To avoid doubt, nothing in this Part prevents an indigenous person from continuing in accordance with law the traditional use of an area for:

(a)

hunting (except for the purposes of sale); or

(b)

food gathering (except for the purposes of sale); or

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 1 Introduction

Section 303BB

(c) ceremonial or religious purposes.

303BB Simplified outline

The following is a simplified outline of this Part:

• This Part sets up a system for regulating the international movement of wildlife specimens.
• A CITES specimen is a specimen of a species included in Appendix I, II or III to the Convention on International Trade in Endangered Species (CITES).
• It is an offence to export or import a CITES specimen unless:
• the exporter or importer holds a permit; or
• an exemption applies.
• A regulated native specimen is a specimen of a native species subject to export control under this Part.
• It is an offence to export a regulated native specimen unless:
• the exporter holds a permit; or
• an exemption applies.
• A regulated live specimen is a live specimen of a species subject to import control under this Part.
• It is an offence to import a regulated live specimen unless the importer holds a permit.
• It is an offence to possess a specimen that was imported in contravention of this Part.

Conservation of biodiversity and heritage Chapter 5 International movement of wildlife specimens Part 13A Introduction Division 1

303BC Definitions

In this Part, unless the contrary intention appears:

eligible listed threatened species means a listed threatened species other than a species in the conservation dependent category.

engage in conduct means:

(a)

do an act; or

(b)

omit to perform an act.

export means:

(a)

export from Australia or from an external Territory; or

(b)

export from the sea; but does not include:

(c)

export from Australia to an external Territory; or

(d)

export from an external Territory to Australia; or

(e)

export from an external Territory to another external Territory.

export from the sea, in relation to a specimen, means take in a Commonwealth marine area and then take out of that area to another country without bringing into Australia or into an external Territory.

import means:

(a)

import into Australia or into an external Territory; or

(b)

import by way of introduction from the sea; but does not include:

(c)

import into Australia from an external Territory; or

(d)

import into an external Territory from Australia; or

(e)

import into an external Territory from another external Territory.

import by way of introduction from the sea, in relation to a specimen, means take in the marine environment not under the jurisdiction of any country and then bring into Australia or into an external Territory without having been imported into any other country.

Chapter 5 Conservation of biodiversity and heritage Part 13A International movement of wildlife specimens Division 1 Introduction

Section 303BC

marine environment means the sea, and includes:

(a)

the air space above the sea; and

(b)

the seabed and subsoil beneath the sea.

recipient means:

(a)

in relation to a specimen that is exported—the person in the country to which the specimen is exported who is to have the care and custody of the specimen after the export; and

(b)

in relation to a specimen that is imported into Australia or into an external Territory—the person in Australia or that Territory, as the case may be, who is to have the care and custody of the specimen after the import.

relevant CITES authority, in relation to a country, means:

(a)

if the country is a party to CITES—a Management Authority of that country; or

(b)

if the country is not a party to CITES—a competent authority of that country within the meaning of Article X of CITES.

sender, in relation to a specimen that is imported into Australia or an external Territory, means the person in the country from which the specimen is imported who exports it from that country to Australia or to that Territory, as the case may be.

take includes:

(a)

in relation to an animal—harvest, catch, capture, trap and kill; and

(b)

in relation to a plant specimen—harvest, pick, gather and cut.

trade means trade within the ordinary meaning of that expression. Note: See also section 528.

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

Division 2—CITES species

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

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

Section 303CB

(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.

(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

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

(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

(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.

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

Section 303CD

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.

(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.

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

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 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

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

Section 303CE

(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.

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 without breaching section 303CC, 303CD, 303DD or 303EK.

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

(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

(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

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

Section 303CH

(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.

(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

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

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

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).
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.

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 specimen	Action	Specific conditions
3	CITES II	Import	(a) 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) any of the following subparagraphs applies:
			(i) the proposed import of the specimen
			would be an import from an approved
			commercial import program in
			accordance with section 303FU;
			(ii) the specimen is, or is derived from, an
			animal that was bred in captivity
			(section 527B);
			(iii) the specimen is, or is derived from, a
			plant that was artificially propagated
			(section 527C).
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
			(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).

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
			(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).

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).

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 for:

(i) a period of 6 months beginning on the date on which it is issued; or

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

Section 303CK

(ii) if a shorter period is specified in the permit—that shorter period.

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.

(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.

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

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

Division 3—Exports of regulated native specimens

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).

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

(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

(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

(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.

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

Section 303DC

(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.

(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.

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

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.

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

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

Section 303DE

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.

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), (3A) and (4).

(2)

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

(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).

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

(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.

(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).

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

Section 303DG

(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, 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

(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.

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

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.

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 for:

(i)

a period of 3 years beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

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.

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

Section 303DJ

(2)

The register may be maintained by electronic means.

(3)

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

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

Division 4—Imports of regulated live specimens

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.

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

Section 303EC

(7)

For each specimen included in Part 2 of the list, 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.

(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.

(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.

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

(2)

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

(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.

Subdivision B—Assessments relating to the amendment of the list of specimens suitable for import

303ED Amendment of list on the Minister’s own initiative

(1)

The Minister may formulate a proposal for the list referred to in section 303EB to be amended by including an item.

(2)

The Minister must cause to be conducted an assessment of the potential impacts on the environment of the proposed amendment.

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

Section 303EE

(3)

The Minister must cause to be prepared a report on those impacts. The report must be prepared in accordance with section 303EF.

(4)

A report under subsection (3) is to be given to the Minister.

303EE Application for amendment of list

(1)

A person may, in accordance with the regulations, apply to the Minister for the list referred to in section 303EB to be amended by including an item.

(2)

The Minister must not consider the application unless:

(a)

an assessment is made of the potential impacts on the environment of the proposed amendment; and

(b)

a report on those impacts is given to the Minister. The report must be prepared in accordance with section 303EF.

303EF Requirement for assessments

An assessment under subsection 303ED(2) or 303EE(2) must provide for:

(a)

the preparation of draft terms of reference for a report on the relevant impacts; and

(b)

the publication of the draft terms of reference for public comment for a period of at least 10 business days that is specified by the Minister; and

(c)

the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference; and

(d)

the preparation of a draft of a report on the relevant impacts; and

(e)

the publication of the draft report for public comment for a period of at least 20 business days that is specified by the Minister; and

(f)

the finalisation of the report, taking into account the comments (if any) received after publication of the draft report; and

(g)

any other matter prescribed by the regulations.

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

303EG Timing of decision about proposed amendment

(1) If the Minister receives a report under section 303ED or 303EE in relation to a proposed amendment, the Minister must decide whether or not to make the proposed amendment within:

(a)

30 business days; or

(b)

if the Minister, by writing, specifies a longer period—that

longer period; after the first business day after the day on which the report was received.

Notice of extension of time

(2) If the Minister specifies a longer period for the purposes of subsection (1), he or she must:

(a)

if section 303EE applies—give a copy of the specification to the applicant; and

(b)

publish the specification in accordance with the regulations.

303EH Requesting further information

(1) If:

(a)

section 303EE applies; and

(b)

the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to make the proposed amendment;

the Minister may request the applicant to give the Minister, within the period specified in the request, information relevant to making the decision.

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

303EI Notice of refusal of proposed amendment

If section 303EE applies and the Minister refuses to make the proposed amendment, the Minister must give the applicant notice of the refusal.

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

Section 303EJ

303EJ Reviews

If, following consideration of a relevant report under section 303ED or 303EE, the Minister has made a decision to include, or refusing to include, an item in the list referred to in section 303EB, the Minister may review that decision at any time during the period of 5 years after the decision was made.

Subdivision C—Offence and permit system

303EK Imports of regulated live specimens

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

(a)

the person imports a specimen; and

(b)

the specimen is a regulated live specimen.

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

Exemption—permit

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

(a)

the specimen is included in Part 2 of the list referred to in section 303EB; and

(b)

the specimen is imported in accordance with a permit that was issued under section 303CG, 303EN, 303GB or 303GC and is in force.

Exemption—testing permit

(3) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303GD and is in force.

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

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

303EL Applications for permits

(1)

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

(2)

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

303EM 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.

303EN Minister may issue permits

(1)

The Minister may, on application made by a person under section 303EL, 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 without breaching section 303EK.

(3)

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

(a)

the proposed import would not be:

(i)

likely to threaten the conservation status of a species or ecological community; or

(ii)

likely to threaten biodiversity; and

(b)

the specimen is included in Part 2 of the list referred to in section 303EB; and

(c)

if any restriction or condition is applicable to the specimen under a notation in Part 2 of the list referred to in section 303EB—that restriction or condition has been, or is likely to be, complied with; and

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

Section 303EO

(d)

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

(e)

if the specimen 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.

(4) 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.

303EO Time limit for making permit decision

If an application for a permit is made under section 303EL, 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 303EM—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).

303EP Duration of permits

A permit under section 303EN:

(a)

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

(b)

unless it is sooner cancelled, remains in force for:

(i)

a period of 3 years beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

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303EQ 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 303EL after the establishment of the register; and

(b)

prescribed particulars of decisions made by the Minister under section 303EN 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 D—Marking of certain specimens for the purposes of identification

303ER Object

The object of this Subdivision is:

(a)

to comply with Australia’s obligations under:

(i)

the Biodiversity Convention; and

(ii)

CITES; and

(b)

otherwise to further the protection and conservation of the

wild fauna and flora of Australia and of other countries; by requiring the marking of certain live specimens for the purposes of identification.

Note: See Article 8 of the Biodiversity Convention.

303ES Specimens to which Subdivision applies

This Subdivision applies to a regulated live specimen if:

(a)

the specimen has been imported in accordance with:

(i) a permit under this Division; or (ii) a permit or authority under the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or

(b)

the specimen is the progeny of a specimen referred to in paragraph (a).

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Section 303ET

303ET Extended meaning of marking

A reference in this Subdivision to the marking of a specimen includes a reference to the following:

(a)

in the case of a live plant:

(i)

the marking or labelling of a container in which the plant is kept or in which the plant is growing; and

(ii)

the placement of a label or tag on the plant;

(b)

in the case of a live animal:

(i)

the implantation of a scannable device in the animal; and

(ii)

the placement of a band on any part of the animal; and

(iii) the placement (whether by piercing or otherwise) of a tag or ring on any part of the animal; and

(iv) the marking or labelling of a container within which the animal is kept.

303EU Secretary may make determinations about marking of specimens

Determinations

(1) The Secretary may make a written determination about the marking of specified kinds of specimens for the purposes of identification.

Matters that may be covered by determination

(2) Without limiting subsection (1), a determination by the Secretary under that subsection may:

(a)

require specimens to be marked; and

(b)

deal with the manner in which specimens are to be marked; and

(c)

deal with the times at which marking is to occur; and

(d)

deal with the removal or destruction of marks; and

(e)

deal with the replacement or modification of marks; and

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(f)

require that marking be carried out by persons approved in writing by the Secretary under that determination; and

(g)

deal with the circumstances in which marks may be, or are required to be, rendered useless; and

(h)

in the case of a mark that consists of a label, tag, band or device:

(i)

set out specifications relating to the label, tag, band or device; and

(ii)

require that any destruction or removal of the label, tag, band or device be carried out by a person approved in writing by the Secretary under that determination.

Marking of animals not to involve undue pain etc.

(3) In the case of a live animal, a determination under subsection (1) must not require marking that involves:

(a)

undue pain or distress to the animal; or

(b)

undue risk of the death of the animal.

Marking of plants not to involve undue risk of death

(4) In the case of a live plant, a determination under subsection (1) must not require marking that involves undue risk of the death of the plant.

Disallowable instrument

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

303EV Offences

Owner to ensure specimens marked etc.

(1) If a determination under section 303EU applies to a specimen, the owner of the specimen must comply with the determination.

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Section 303EW

Person not to remove or interfere with mark etc.

(2) A person contravenes this subsection if:

(a)

a specimen is marked in accordance with a determination under section 303EU; and

(b)

the person engages in conduct; and

(c)

the conduct causes the removal of the mark or interference with the mark, or renders the mark unusable.

Offence

(3)

A person who contravenes subsection (1) or (2) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.

(4)

Subsection (2) does not apply if the person engages in the conduct in accordance with a determination under section 303EU.

Note: The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.

(5) In subsections (1) and (2), strict liability applies to the circumstance that a determination was made under section 303EU.

Note: For strict liability, see section 6.1 of the Criminal Code.

303EW This Subdivision does not limit conditions of permits

This Subdivision does not limit section 303GE (which deals with conditions of permits).

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Division 5—Concepts relating to permit criteria

Subdivision A—Non-commercial purpose exports and imports

303FA Eligible non-commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible non-commercial purpose export if, and only 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; or

(e)

the export of the specimen would be an export of a household pet in accordance with section 303FG; or

(f)

the export of the specimen would be an export of a personal item in accordance with section 303FH; or

(g)

the export of a specimen would be an export for the purposes of a travelling exhibition in accordance with section 303FI.

303FB Eligible non-commercial purpose imports

For the purposes of this Part, the import of a specimen is an eligible non-commercial purpose import if, and only if:

(a)

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

(b)

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

(c)

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

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(d)

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

(e)

the import of the specimen would be an import of a household pet in accordance with section 303FG; or

(f)

the import of the specimen would be an import of a personal item in accordance with section 303FH; or

(g)

the import of a specimen would be an import for the purposes of a travelling exhibition in accordance with section 303FI.

303FC Export or import for the purposes of research

(1)

The export of a specimen is an export for the purposes of research in accordance with this section if:

(a)

the specimen will be used for the purpose of scientific research; and

(b)

the objects of the research are covered by any or all of the following subparagraphs:

(i)

the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;

(ii)

the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health; and

(c)

the export is not primarily for commercial purposes; and

(d)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2)

The import of a specimen is an import for the purposes of research in accordance with this section if:

(a)

the specimen will be used for the purpose of scientific research; and

(b)

the objects of the research are covered by any or all of the following subparagraphs:

(i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;

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(ii) the conservation of biodiversity;

(iii) the maintenance and/or improvement of human health; and

(c)

the import is not primarily for commercial purposes; and

(d)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FD Export or import for the purposes of education

(1)

The export of a specimen is an export for the purposes of education in accordance with this section if:

(a)

the specimen will be used for the purpose of education or training; and

(b)

the export is not primarily for commercial purposes; and

(c)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2)

The import of a specimen is an import for the purposes of education in accordance with this section if:

(a)

the specimen will be used for the purpose of education or training; and

(b)

the import is not primarily for commercial purposes; and

(c)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FE Export or import for the purposes of exhibition

(1)

The export of a specimen is an export for the purposes of exhibition in accordance with this section if:

(a)

the specimen will be used for the purpose of an exhibition; and

(b)

the export is not primarily for commercial purposes; and

(c)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2)

The import of a specimen is an import for the purposes of exhibition in accordance with this section if:

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(a)

the specimen will be used for the purpose of an exhibition; and

(b)

the import is not primarily for commercial purposes; and

(c)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(3) In this section:

exhibition includes a zoo or menagerie.

303FF Export or import for conservation breeding or propagation

(1)

The export of a specimen is an export for the purposes of conservation breeding or propagation in accordance with this section if:

(a)

the specimen is a live animal or a live plant; and

(b)

the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and

(c)

the program is a program that, under the regulations, is taken to be an approved co-operative conservation program; and

(d)

the export is not primarily for commercial purposes; and

(e)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(2)

The import of a specimen is an import for the purposes of conservation breeding or propagation in accordance with this section if:

(a)

the specimen is a live animal or a live plant; and

(b)

the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and

(c)

the program is a program that, under the regulations, is taken to be an approved co-operative conservation program; and

(d)

the import is not primarily for commercial purposes; and

(e)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

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303FG Export or import of household pets

Export of live native animals

(1) The export of a live native animal (other than a CITES specimen) is an export of a household pet in accordance with this section if:

(a)

the animal is included in the list referred to in subsection (4); and

(b)

the export is not primarily for commercial purposes; and

(c)

such other conditions as are specified in the regulations have been, or are likely to be, satisfied.

Export of live CITES specimens

(2) The export of a CITES specimen is an export of a household pet in accordance with this section if:

(a)

the specimen is a live animal; and

(b)

if the animal is a native animal—the animal is included in the list referred to in subsection (4); and

(c)

the export is not primarily for commercial purposes; and

(d)

such other conditions as are specified in the regulations have been, or are likely to be, satisfied.

Import of live animals

(3) The import of a live animal is an import of a household pet in accordance with this section if:

(a)

the conditions specified in the regulations have been, or are likely to be, satisfied; and

(b)

the import is not primarily for commercial purposes; and

(c)

the animal is included in Part 2 of the list referred to in section 303EB.

Listing of native household pet animals

(4) The Minister must, by instrument published in the Gazette, establish a list of native household pet animals.

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(5)

The list, as first established, must contain the animals referred to in Schedule 7 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.

(6)

The Minister may, by instrument in the Gazette, amend the list referred to in subsection (4) by:

(a)

including items in the list; or

(b)

deleting items from the list; or

(c)

correcting an inaccuracy or updating the name of a species.

(7)

An instrument under subsection (6) (other than an instrument mentioned in paragraph (6)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

303FH Export or import of personal items

(1)

The export of a specimen is an export of a personal item in accordance with this section if:

(a)

the specimen is not a live specimen; and

(b)

the export is not primarily for commercial purposes; and

(c)

the conditions specified in the regulations have been, or are likely to be, satisfied.

(2)

The import of a specimen is an import of a personal item in accordance with this section if:

(a)

the specimen is not a live specimen; and

(b)

the import is not primarily for commercial purposes; and

(c)

the conditions specified in the regulations have been, or are likely to be, satisfied.

303FI Export or import for the purposes of a travelling exhibition

(1) The export of a specimen is an export for the purposes of a travelling exhibition in accordance with this section if:

(a)

the export is not primarily for commercial purposes; and

(b)

the conditions specified in the regulations have been, or are likely to be, satisfied.

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(2) The import of a specimen is an import for the purposes of a travelling exhibition in accordance with this section if:

(a)

the import is not primarily for commercial purposes; and

(b)

the conditions specified in the regulations have been, or are likely to be, satisfied.

Subdivision B—Commercial purpose exports and imports

303FJ Eligible commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible commercial purpose export if, and only 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

(c)

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

(d)

the export of the specimen would be an export in accordance with an approved wildlife trade operation (section 303FN); or

(e)

the export of the specimen would be an export in accordance with an approved wildlife trade management plan (section 303FO).

Note: See also subsection 303DD(3), which deals with accredited wildlife trade management plans.

303FK Export or import from an approved captive breeding program

(1) The export of a specimen is an export from an approved captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved captive breeding program.

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(2)

The export of a specimen is an export from an approved CITES-registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES-registered captive breeding program.

(3)

The import of a specimen is an import from an approved CITES-registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES-registered captive breeding program.

303FL Export from an approved artificial propagation program

The export of a specimen is an export from an approved artificial propagation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved artificial propagation program.

303FM Export from an approved aquaculture program

The export of a specimen is an export from an approved aquaculture program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved aquaculture program.

303FN Approved wildlife trade operation

(1)

The export of a specimen is an export in accordance with an approved wildlife trade operation if the specimen is, or is derived from, a specimen that was taken in accordance with a wildlife trade operation declared by a declaration in force under subsection (2) to be an approved wildlife trade operation.

(2)

The Minister may, by instrument published in the Gazette, declare that a specified wildlife trade operation is an approved wildlife trade operation for the purposes of this section.

(3)

The Minister must not declare an operation under subsection (2) unless the Minister is satisfied that:

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(a)

the operation is consistent with the objects of this Part; and

(b)

the operation will not be detrimental to:

(i)

the survival of a taxon to which the operation relates; or

(ii)

the conservation status of a taxon to which the operation relates; and

(ba) the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity; and

(c)

if the operation relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and

(d)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4)

In deciding whether to declare an operation under subsection (2), the Minister must have regard to:

(a)

the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity); and

(b)

the effectiveness of the management arrangements for the operation (including monitoring procedures).

(5)

In deciding whether to declare an operation under subsection (2), the Minister must have regard to:

(a)

whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and

(b)

whether the legislation applies throughout the State or Territory concerned; and

(c)

whether, in the opinion of the Minister, the legislation is effective.

(6)

A declaration under subsection (2) ceases to be in force at the beginning of the third anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 3 years is specified in the declaration in accordance with subsection 303FT(4).

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(7)

If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(8)

A fresh declaration may be made during the 90-day period before the time when the current declaration ceases to be in force.

(9)

A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period.

(10)

For the purposes of this section, an operation is a wildlife trade operation if, and only if, the operation is an operation for the taking of specimens and:

(a)

the operation is an operation that, under the regulations, is taken to be a market-testing operation; or

(b)

the operation is an operation that, under the regulations, is taken to be a small-scale operation; or

(c)

the operation is an operation that, under the regulations, is taken to be a developmental operation; or

(d)

the operation is a commercial fishery; or

(e)

the operation is an operation that, under the regulations, is taken to be a provisional operation; or

(f)

the operation is an operation of a kind specified in the regulations.

(10A) In deciding whether to declare that a commercial fishery is an approved wildlife trade operation for the purposes of this section, 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.

(10B) Subsection (10A) does not limit the matters that may be taken into account in deciding whether to declare that a fishery is an approved wildlife trade operation for the purposes of this section.

(11) In this section:

fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.

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fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:

(a)

a species or type of fish;

(b)

a description of fish by reference to sex or any other characteristic;

(c)

an area of waters or of seabed;

(d)

a method of fishing;

(e)

a class of vessels;

(f)

a class of persons;

(g)

a purpose of activities.

303FO Approved wildlife trade management plan

(1)

The export of a specimen is an export in accordance with an approved wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an approved wildlife trade management plan.

(2)

The Minister may, by instrument published in the Gazette, declare that a specified plan is an approved wildlife trade management plan for the purposes of this section.

(3)

The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:

(a)

the plan is consistent with the objects of this Part; and

(b)

there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of:

(i)

the status of the species to which the plan relates in the wild; and

(ii)

the extent of the habitat of the species to which the plan relates; and

(iii) the threats to the species to which the plan relates; and

(iv) the impacts of the activities covered by the plan on the habitat or relevant ecosystems; and

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(c) the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:

(i)

a taxon to which the plan relates; and

(ii)

any taxa that may be affected by activities covered by the plan; and

(iii) any relevant ecosystem (for example, impacts on habitat

or biodiversity); are ecologically sustainable; and

(d)

the activities covered by the plan will not be detrimental to:

(i)

the survival of a taxon to which the plan relates; or

(ii)

the conservation status of a taxon to which the plan relates; or

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

(e)

the plan includes measures:

(i)

to mitigate and/or minimise the environmental impact of the activities covered by the plan; and

(ii)

to monitor the environmental impact of the activities covered by the plan; and

(iii) to respond to changes in the environmental impact of the activities covered by the plan; and

(f)

if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and

(g)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4) In deciding whether to declare a plan under subsection (2), the Minister must have regard to:

(a)

whether legislation relating to the protection, conservation or management of the specimens to which the plan relates is in force in the State or Territory concerned; and

(b)

whether the legislation applies throughout the State or Territory concerned; and

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(c) whether, in the opinion of the Minister, the legislation is effective.

(5)

A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).

(6)

If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(7)

A fresh declaration may be made during the 90-day period before the time when the current declaration ceases to be in force.

(8)

A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period.

303FP Accredited wildlife trade management plan

(1)

The export of a specimen is an export in accordance with an accredited wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an accredited wildlife trade management plan.

(2)

The Minister may, by instrument published in the Gazette, declare that a specified plan is an accredited wildlife trade management plan for the purposes of this section.

(3)

The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:

(a)

the plan is in force under a law of the Commonwealth or of a State or Territory; and

(b)

the conditions set out in subsection 303FO(3) have been met in relation to the plan; and

(c)

the plan imposes limits in relation to the taking of specimens; and

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(d)

the compliance and enforcement measures relating to the plan are likely to be effective in preventing specimens taken in breach of the plan from being traded or exported; and

(e)

the plan provides for the monitoring of:

(i)

the taking of specimens under the plan; and

(ii)

the export of specimens taken under the plan; and

(iii) the status of the species to which the plan relates in the wild; and (iv) the impacts of the activities under the plan on the habitat of the species to which the plan relates; and

(f)

the plan provides for statistical reports about specimens taken under the plan to be given to the Minister on a regular basis; and

(g)

such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

(4)

A declaration under subsection (2) ceases to be in force at the beginning of the fifth anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 5 years is specified in the declaration in accordance with subsection 303FT(4).

(5)

If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).

(6)

A fresh declaration may be made during the 90-day period before the time when the current declaration ceases to be in force.

(7)

A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period.

(8)

The Minister must publish on the Internet copies of reports given as mentioned in paragraph (3)(f).

(9)

The Minister is not required to comply with subsection (8) to the extent to which compliance could reasonably be expected to:

(a) prejudice substantially the commercial interests of a person; or

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(b) be detrimental to:

(i)

the survival of a taxon to which the plan relates; or

(ii)

the conservation status of a taxon to which the plan relates.

303FQ Consultation with State and Territory agencies

Before making a declaration under section 303FO or 303FP, the Minister must consult a relevant agency of each State and self-governing Territory affected by the declaration.

303FR Public consultation

(1)

Before making a declaration under section 303FN, 303FO or 303FP, the Minister must cause to be published on the Internet a notice:

(a)

setting out the proposal to make the declaration; and

(b)

setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and

(c)

inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.

(2)

A period specified in a notice under subsection (1) must not be shorter than 20 business days after the date on which the notice was published on the Internet.

(3)

In making a decision about whether to make a declaration under section 303FN, 303FO or 303FP, the Minister must consider any comments about the proposal to make the declaration that were given in response to an invitation under subsection (1).

303FRA Assessments

(1) The regulations may prescribe an assessment process that is to be used for the purposes of sections 303FN, 303FO and 303FP to assess the potential impacts on the environment of:

(a) a wildlife trade operation; or

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(b) the activities covered by a plan;

where the operation is, or the activities are, likely to have a significant impact on the environment.

(2) If regulations made for the purposes of subsection (1) apply to a wildlife trade operation or to a plan, the Minister must not declare:

(a)

the operation under subsection 303FN(2); or

(b)

the plan under subsection 303FO(2) or 303FP(2); unless the assessment process prescribed by those regulations has

been followed in relation to the assessment of the operation or plan, as the case may be.

(3)

Without limiting subsection (1), regulations made for the purposes of that subsection may make provision for:

(a)

the application of Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) in relation to the assessment process, subject to such modifications as are specified in the regulations; and

(b)

exemptions from the assessment process.

(4)

In this section:

modifications includes additions, omissions and substitutions.

wildlife trade operation has the same meaning as in subsection 303FN(10), but does not include an operation mentioned in paragraph 303FN(10)(d).

303FS Register of declarations

(1)

The Minister must cause to be maintained a register that sets out declarations made under section 303FN, 303FO or 303FP.

(2)

The register may be maintained by electronic means.

(3)

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

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303FT Additional provisions relating to declarations

(1)

This section applies to a declaration under section 303FN, 303FO or 303FP.

(2)

A declaration may be made:

(a)

on the Minister’s own initiative; or

(b)

on written application being made to the Minister.

(3)

The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only to the extent that the plan or operation relates to a particular class of specimens. In such a case:

(a)

the instrument of declaration is to specify that class of specimens; and

(b)

the plan or operation is covered by the declaration only to the extent that the plan or operation relates to that class of specimens.

(4)

The Minister may make a declaration about a plan or operation even though he or she considers that the plan or operation should be the subject of the declaration only:

(a)

during a particular period; or

(b)

while certain circumstances exist; or

(c)

while a certain condition is complied with.

In such a case, the instrument of declaration is to specify the period, circumstances or condition.

(5)

If a declaration specifies a particular period as mentioned in subsection (4), the declaration ceases to be in force at the end of that period.

(6)

If a declaration specifies circumstances as mentioned in subsection (4), the Minister must, by instrument published in the Gazette, revoke the declaration if he or she is satisfied that those circumstances have ceased to exist.

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Section 303FU

(7)

The Minister may, by instrument published in the Gazette, vary a declaration by:

(a)

specifying one or more conditions (or further conditions) to which the declaration is subject; or

(b)

revoking or varying a condition:

(i)

specified in the instrument of declaration; or

(ii)

specified under paragraph (a).

(8)

A condition may relate to reporting or monitoring.

(9)

The Minister must, by instrument published in the Gazette, revoke a declaration if he or she is satisfied that a condition of the declaration has been contravened.

(10)

The Minister may, by instrument published in the Gazette, revoke a declaration at any time.

(11)

A copy of an instrument under section 303FN, 303FO or 303FP or this section is to be made available for inspection on the Internet.

303FU Approved commercial import program

The import of a specimen is an import from an approved commercial import program in accordance with this section if the specimen is sourced from a program that, under the regulations, is taken to be an approved commercial import program.

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Division 6—Miscellaneous

303GA Permit decision—controlled action, and action for which a non-Part 13A permit is required

(1) This section applies if:

(a)

an application is made under section 303CE, 303DE or 303EL for a permit (the first permit) to authorise the taking of an action (the proposed action); and

(b)

the Minister considers that:

(i)

the proposed action may be or is a controlled action; or

(ii)

the proposed action is related to an action (the related action) that may be or is a controlled action; or

(iii) the proposed action is an action for which a non-Part 13A permit is required; or

(iv) the proposed action is related to an action (the related action) that is an action for which a non-Part 13A permit is required.

Deferral of decision

(2) The Minister must neither issue, nor refuse to issue, the first permit before whichever is the latest of the following days:

(a)

if subparagraph (1)(b)(i) applies—the day on which the Minister makes a decision under section 75 about whether the proposed action is a controlled action;

(b)

if subparagraph (1)(b)(i) applies and the Minister makes a decision under section 75 that the proposed action is a controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;

(c)

if subparagraph (1)(b)(ii) applies—the day on which the Minister makes a decision under section 75 about whether the related action is a controlled action;

(d)

if subparagraph (1)(b)(ii) applies and the Minister makes a decision under section 75 that the related action is a

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Section 303GA

controlled action—the day on which the Minister makes a decision under section 133 approving, or refusing to approve, the taking of the controlled action;

(e)

if subparagraph (1)(b)(iii) applies—the day on which a decision is made to issue, or to refuse to issue, the non-Part 13A permit referred to in that subparagraph;

(f)

if subparagraph (1)(b)(iv) applies—the day on which a decision is made to issue, or to refuse to issue, the non-Part 13A permit referred to in that subparagraph.

Refusal of permit

(3)

The Minister must not issue the first permit if:

(a)

subparagraph (1)(b)(i) applies; and

(b)

the Minister makes a decision under section 75 that the proposed action is a controlled action; and

(c)

the Minister makes a decision under section 133 refusing to approve the taking of the controlled action.

(4)

The Minister must not issue the first permit if:

(a)

subparagraph (1)(b)(ii) applies; and

(b)

the Minister makes a decision under section 75 that the related action is a controlled action; and

(c)

the Minister makes a decision under section 133 refusing to approve the taking of the controlled action.

(5)

The Minister must not issue the first permit if:

(a)

subparagraph (1)(b)(iii) applies; and

(b)

a decision is made to refuse to issue the non-Part 13A permit referred to in that subparagraph.

(6)

The Minister must not issue the first permit if:

(a)

subparagraph (1)(b)(iv) applies; and

(b)

a decision is made to refuse to issue the non-Part 13A permit referred to in that subparagraph.

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Action for which a non-Part 13A permit is required

(7)

For the purposes of this section, an action that a person proposes to take is an action for which a non-Part 13A permit is required if the taking of the action by the person without a non-Part 13A permit would be prohibited by this Act or the regulations if it were assumed that this Part had not been enacted.

(8)

For the purposes of this section, a non-Part 13A permit is a permit issued under this Act (other than this Part) or the regulations.

Related action

(9)

For the purposes of this section, if a specimen was taken, the action of exporting or importing the specimen is related to:

(a)

that taking; and

(b)

any action that affected the specimen after that taking and before that export or import.

(10)

For the purposes of this section, if a specimen is derived from a specimen that was taken, the action of exporting or importing the first-mentioned specimen is related to:

(a)

that taking; and

(b)

any action that affected the first-mentioned specimen, or either of those specimens, after that taking and before that export or import.

303GB Exceptional circumstances permit

(1) If:

(a)

the Minister is considering an application by a person for a permit to be issued under section 303CG, 303DG or 303EN in relation to a specimen; and

(b)

under this Part, the Minister is precluded from issuing that permit unless the Minister is satisfied in relation to a matter; and

(c)

even though the Minister is not satisfied in relation to that matter, the Minister is satisfied that:

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Section 303GB

(i)

the export or import of the specimen, as the case may be, would not be contrary to the objects of this Part; and

(ii)

exceptional circumstances exist that justify the proposed export or import of the specimen; and

(iii) the export or import of the specimen, as the case may

be, would not adversely affect biodiversity; the Minister may issue a permit to the person.

(1A) The Minister must not issue a permit under this section unless the grant of that permit would not be contrary to CITES.

(2) A permit under this section authorises the holder of the permit to take the action or actions specified in the permit without breaching section 303CC, 303CD, 303DD or 303EK.

Duration of permit

(3)

A permit under this section that relates to a CITES specimen:

(a)

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

(b)

unless it is sooner cancelled, remains in force for:

(i)

a period of 6 months beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

(4)

A permit under this section that relates to a specimen other than a CITES specimen:

(a)

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

(b)

unless it is sooner cancelled, remains in force for:

(i)

a period of 12 months beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

Further information

(5) The Minister may, within 40 business days after an application is made as mentioned in subsection (1), request the applicant to give the Minister, within the period specified in the request, further

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information for the purpose of enabling the Minister to deal with the application.

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

Public consultation

(7)

Before issuing a permit under this section, the Minister must cause to be published on the Internet a notice:

(a)

setting out the proposal to issue the permit; and

(b)

setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and

(c)

inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.

(8)

A period specified in a notice under subsection (7) must not be shorter than 5 business days after the date on which the notice was published on the Internet.

(9)

In making a decision under subsection (1) about whether to issue a permit, the Minister must consider any comments about the proposal to issue the permit that were given in response to an invitation under subsection (7).

303GC Permit authorising the Secretary to export or import specimens

(1)

The Secretary may apply to the Minister for a permit to be issued under subsection (2).

(2)

The Minister may, on application made by the Secretary under subsection (1), issue a permit to the Secretary. This subsection has effect subject to subsections (4) and (5).

(3)

A permit under subsection (2) authorises the Secretary to take the action or actions specified in the permit without breaching section 303CC, 303CD, 303DD or 303EK.

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Section 303GC

(4)

The Minister must not issue a permit under this section to export a specimen unless the Minister is satisfied that:

(a)

both:

(i)

the recipient of the specimen will be a relevant CITES authority of a country; and

(ii)

the specimen will be used by that relevant CITES authority for the purpose of the identification of a specimen and/or for the purpose of education or training; or

(b)

both:

(i)

the specimen has been seized under this Act; and

(ii)

the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.

(5)

The Minister must not issue a permit under this section to import a specimen unless the Minister is satisfied that:

(a)

the specimen will be used by the Secretary for the purposes of the identification of a specimen; or

(b)

both:

(i)

the sender of the specimen will be a relevant CITES authority of a country; and

(ii)

the specimen will be used for the purpose of the identification of a specimen and/or for the purpose of education or training; or

(c)

the specimen was exported from Australia in contravention of:

(i) this Part; or (ii) the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or

(d)

the specimen will be used to facilitate investigations in or outside Australia in relation to trade relating to wildlife.

(6)

A permit under this section:

(a)

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

(b)

unless it is sooner cancelled, remains in force for:

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(i)

a period of 12 months beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

303GD Testing permit—section 303EE assessments

Applications for permits

(1)

A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under subsection (5).

(2)

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

Further information

(3)

The Minister may, within 40 business days after the application is made, request the person 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.

(4)

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

Minister may issue permits

(5)

The Minister may, on application made by a person under subsection (1), issue a permit to the person. This subsection has effect subject to subsections (7) and (8).

(6)

A permit authorises its holder to take the action or actions specified in the permit without breaching section 303EK.

(7)

The Minister must not issue a permit to a person unless the Minister is satisfied that:

(a) the person has made an application to the Minister under section 303EE for the list referred to in section 303EB to be amended by including an item; and

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Section 303GE

(b)

if the proposed amendment were made, the specimen would be covered by the item; and

(c)

the specimen is not a CITES specimen; and

(d)

an assessment is to be made under section 303EE of the potential impacts on the environment of the proposed amendment, and the terms of reference for a report on the assessment have been finalised; and

(e)

the person proposes to conduct tests on the specimen in Australia in order to obtain information for the assessment; and

(f)

the information is required for the assessment; and

(g)

it is not reasonably practicable for the person to obtain the information without conducting the tests in Australia; and

(h)

the tests will be conducted in a controlled environment.

(8) The Minister must not issue a permit under this section unless the permit is subject to one or more conditions about holding the specimen in quarantine.

Duration of permit

(9) A permit under this section:

(a)

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

(b)

unless it is sooner cancelled, remains in force for:

(i)

a period of 6 months beginning on the date on which it is issued; or

(ii)

if a shorter period is specified in the permit—that shorter period.

Investigations

(10) A reference in this section to tests on the specimen includes a reference to investigations relating to the specimen.

303GE Conditions of permits

(1) This section applies to a permit issued under this Part.

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(2)

A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (3).

(3)

The Minister may, in accordance with the regulations:

(a)

vary or revoke a condition of a permit; or

(b)

impose further conditions of a permit.

(4)

The Minister’s powers under subsection (3) may be exercised:

(a)

on the Minister’s own initiative; or

(b)

on the application of the holder of the permit concerned.

(5)

If a permit authorises its holder to take a particular action, a condition of the permit may require the holder to do, or not do, an act or thing before, at or after the time when the action takes place.

(6)

If a person is given an authority under section 303GG by the holder of a permit, subsection (5) applies to the person in a corresponding way to the way in which it applies to the holder of the permit.

(7)

Subsections (4), (5) and (6) are to be disregarded in determining the meaning of a provision of this Act (other than a provision of this Part) that relates to conditions of permits issued otherwise than under this Part.

303GF Contravening conditions of a permit

(1)

This section applies to a permit issued under this Part.

(2)

A person is guilty of an offence if:

(a)

the person is:

(i)

the holder of a permit; or

(ii)

a person to whom an authority under section 303GG has been given by the holder of a permit; and

(b)

the person engages in conduct; and

(c)

the conduct results in a contravention of a condition of the permit.

Penalty: 300 penalty units.

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Section 303GF

(3) The holder of a permit is guilty of an offence if:

(a)

the person is:

(i)

the holder of a permit; or

(ii)

a person to whom an authority under section 303GG has been given by the holder of a permit; and

(b)

the person engages in conduct; and

(c)

the conduct results in a contravention of a condition of the permit; and

(d)

the condition relates to:

(i)

the sale or other disposal of a live animal or a live plant; or

(ii)

the sale or other disposal of the progeny of a live animal or a live plant; or

(iii) the release from captivity of a live animal; or

(iv)

the release from captivity of the progeny of a live animal; or

(v)

the escape of a live plant.

Penalty: 600 penalty units.

(4) For the purposes of subsection (3), a person is taken to have released an animal from captivity if:

(a)

that animal has escaped from captivity; and

(b)

either:

(i)

the person allowed the animal to escape; or

(ii)

the person failed to take all reasonable measures to prevent the animal from escaping.

(4A) For the purposes of subsection (3), a person is taken to have allowed a plant to escape if:

(a)

the plant has grown or propagated in the wild; and

(b)

either:

(i)

the person allowed the plant to escape; or

(ii)

the person failed to take all reasonable measures to prevent the plant from growing or propagating in the wild.

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(5) In subsections (2) and (3), strict liability applies to the circumstance that the person was given an authority under section 303GG.

Note: For strict liability, see section 6.1 of the Criminal Code.

303GG Authorities under permits

(1)

This section applies to a permit issued under this Part.

(2)

Except as provided in this section, a permit does not authorise the taking of any action by a person for or on behalf of the holder of the permit.

(3)

Subject to subsection (4), the holder of a permit may give a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.

(4)

The holder of a permit must not give an authority unless:

(a)

the permit contains a condition permitting the holder to do so; and

(b)

the authority is given in accordance with any requirements set out in the condition.

(5)

A permit is, for the purposes of this Act, taken to authorise the taking of a particular action by a person if the taking of that action by the person is authorised by an authority given by the holder of the permit.

(6)

The giving of an authority does not prevent the taking of any action by the holder of the permit.

(7)

A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.

303GH Transfer of permits

(1) This section applies to a permit issued under this Part.

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Section 303GI

(2)

On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.

(3)

In deciding whether to transfer the permit to another person, the Minister must consider whether the transferee is a suitable person to hold the permit, having regard to the matters set out in the regulations.

303GI Suspension or cancellation of permits

(1)

This section applies to a permit issued under this Part.

(2)

The Minister may, in accordance with the regulations:

(a)

suspend a permit for a specified period; or

(b)

cancel a permit.

303GJ Review of decisions

(1)

An application may be made to the Tribunal for review of a decision:

(a)

to issue or refuse a permit; or

(b)

to specify, vary or revoke a condition of a permit; or

(c)

to impose a further condition of a permit; or

(d)

to transfer or refuse to transfer a permit; or

(e)

to suspend or cancel a permit; or

(f)

to issue or refuse a certificate under subsection 303CC(5); or

(g)

of the Secretary under a determination in force under section 303EU; or

(h)

to make or refuse a declaration under section 303FN, 303FO or 303FP; or

(i)

to vary or revoke a declaration under section 303FN, 303FO or 303FP.

(2)

In giving a direction as to the persons who are to constitute the Tribunal for the purposes of a review of a decision of the Minister to issue or refuse a permit, where any of the following provisions are relevant for the purposes of the review:

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(a)

paragraph 303CG(3)(a);

(b)

paragraph 303CG(3)(c);

(c)

paragraph 303DG(4)(a);

(d)

paragraph 303DG(4)(b);

(e)

paragraph 303EN(3)(e); the President of the Tribunal must ensure that, for the purposes of the review, the Tribunal is constituted by, or includes, a member of

the Tribunal who, in the opinion of the President, has special knowledge or skill in relation to environmental matters.

(3) In this section:

permit means a permit under this Part.

Tribunal means:

(a)

before the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Appeals Tribunal; and

(b)

after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Review Tribunal.

303GK Permit to be produced

Export permit

(1)

For the purposes of this Part, if the holder of a permit to export a specimen exports that specimen, he or she is not to be taken to have exported that specimen in accordance with that permit unless, before exporting the specimen, he or she:

(a)

produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the export of the specimen; or

(b)

received written notice from the Secretary authorising the export of the specimen without the production of the permit.

(2)

The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:

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Section 303GL

(a)

is satisfied that the production of the permit is impracticable; and

(b)

endorses a copy of the permit to show that the notice is being given; and

(c)

makes that copy available to an authorised officer doing duty in relation to the export of the specimen.

Import permit

(3) For the purposes of this Part, if the holder of a permit to import a specimen imports that specimen, he or she is not to be taken to have imported that specimen in accordance with that permit unless, before or within a reasonable time after importing the specimen, he or she produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the import of the specimen.

Authorities under section 303GG

(4) If a person is given an authority under section 303GG by the holder of a permit, this section applies to the person in a corresponding way to the way in which it applies to the holder of the permit.

303GL Pre-CITES certificate to be produced

Export certificate

(1)

If a person exports a specimen and wishes to rely on a certificate issued under subsection 303CC(5), he or she is not entitled to rely on that certificate unless, before exporting the specimen, he or she:

(a)

produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the export of the specimen; or

(b)

received written notice from the Secretary authorising the export of the specimen without the production of the certificate.

(2)

The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:

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(a)

is satisfied that the production of the certificate is impracticable; and

(b)

endorses a copy of the certificate to show that the notice is being given; and

(c)

makes that copy available to an authorised officer doing duty in relation to the export of the specimen.

Import certificate

(3) If a person imports a specimen and wishes to rely on a certificate referred to in paragraph 303CD(6)(b), he or she is not entitled to rely on the certificate unless, before or within a reasonable time after importing the specimen, he or she produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the import of the specimen.

303GM Fees

(1)

This section applies to a permit under this Part.

(2)

Such fees (if any) as are prescribed are payable in respect of the following:

(a)

the issue or the transfer of a permit;

(b)

the variation or revocation of a condition of a permit;

(c)

the imposition of a further condition of a permit.

303GN Possession of illegally imported specimens

Object

(1) The object of this section is:

(a)

to comply with Australia’s obligations under:

(i)

the Biodiversity Convention; and

(ii)

CITES; and

(b)

to otherwise further the objects of this Part; by prohibiting the possession of illegally imported specimens and

the progeny of such specimens. Note: See Article 8 of the Biodiversity Convention.

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Section 303GN

Possession of CITES specimens and unlisted regulated live specimens

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

(a)

the person has in the person’s possession, in the Australian jurisdiction, a specimen; and

(b)

the specimen is:

(i)

a CITES specimen; or

(ii)

a regulated live specimen that is not included in the list

referred to in section 303EB; and the person is reckless as to that fact; and

(c) the specimen does not belong to a native species.

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(3)

Subsection (2) does not apply if:

(a)

the specimen was lawfully imported; or

(b)

the specimen was not imported, but all of the specimens of which it is the progeny were lawfully imported.

(4)

Subsection (2) does not apply if the specimen was neither imported, nor the progeny of any other specimen that was imported.

Note 1:	For lawfully imported, see section 303GY.
Note 2:	The defendant bears an evidential burden in relation to the matters in
	subsection (3) (see subsection 13.3(3) of the Criminal Code).

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

(5) Subsection (2) does not apply if the defendant has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

Possession of listed regulated live specimens

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

(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and

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(b)

the specimen is a regulated live specimen that is included in Part 2 of the list referred to in section 303EB, and the person is reckless as to that fact; and

(c)

the specimen does not belong to a native species; and

(d)

either:

(i)

the specimen was unlawfully imported; or

(ii)

the specimen was not imported, but any of the specimens of which it is the progeny was unlawfully imported.

Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.

(7) Subsection (6) does not apply if the defendant has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

Unlawfully imported

(8) For the purposes of this section, a specimen is unlawfully imported if, and only if, it was imported, but was not lawfully imported (section 303GY).

303GO Regulations relating to welfare

(1)

This section applies to regulations made for the purposes of paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).

(2)

The conditions specified in those regulations in relation to a live animal may:

(a)

deal with the welfare of the animal:

(i)

when the animal is taken; or

(ii)

when the animal is being held after it has been taken; or

(iii) when the animal is being prepared or shipped; or (iv) when the animal is under the control of the proposed recipient; and

(b)

may deal with eliminating or minimising the risk of:

(i) injury to the animal; or

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Section 303GP

(ii) adverse effects on the health of the animal; or

(iii) cruel treatment of the animal.

(3)

The conditions specified in those regulations in relation to a live plant may:

(a)

deal with the welfare of the plant:

(i)

when the plant is taken; or

(ii)

when the plant is being held after it has been taken; or

(iii) when the plant is being prepared or shipped; or (iv) when the plant is under the control of the proposed recipient; and

(b)

may deal with eliminating or minimising the risk of:

(i)

injury to the plant; or

(ii)

adverse effects on the health of the plant.

(4)

Subsections (2) and (3) do not limit paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).

303GP Cruelty—export or import of animals

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

(a)

the person exports or imports a live animal in a manner that subjects the animal to cruel treatment; and

(b)

the person knows that, or is reckless as to whether, the export or import subjects the animal to cruel treatment; and

(c)

the animal is a CITES specimen; and

(d)

the person contravenes section 303CC or 303CD in relation to the export or import of the animal.

Penalty: Imprisonment for 2 years.

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

(a)

the person exports a live animal in a manner that subjects the animal to cruel treatment; and

(b)

the person knows that, or is reckless as to whether, the export subjects the animal to cruel treatment; and

(c)

the animal is a regulated native specimen; and

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(d) the person contravenes section 303DD in relation to the export of the animal.

Penalty: Imprisonment for 2 years.

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

(a)

the person imports a live animal in a manner that subjects the animal to cruel treatment; and

(b)

the person knows that, or is reckless as to whether, the import subjects the animal to cruel treatment; and

(c)

the animal is a regulated live specimen; and

(d)

the person contravenes section 303EK in relation to the import of the animal.

Penalty: Imprisonment for 2 years.

(4) This section does not limit section 303GE.

303GQ Imports of specimens contrary to the laws of a foreign country

(1) A person must not intentionally import a specimen if the person knows that:

(a)

the specimen was exported from a foreign country; and

(b)

at the time the specimen was exported, the export of the specimen was prohibited by a law of the foreign country that corresponds to this Part.

Penalty: Imprisonment for 5 years.

(2) A prosecution must not be instituted for an offence against this section unless a relevant CITES authority of the foreign country has requested:

(a)

the investigation of the offence; or

(b)

assistance in relation to a class of offences in which the offence is included.

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Section 303GR

303GR Evidence

(1)

In any proceedings for an offence against this Part:

(a)

any record kept in accordance with the regulations or another law of the Commonwealth or a law of a State or Territory is admissible as prima facie evidence of the facts stated in the record; and

(b)

a copy of an entry in such a record, being a copy certified by the person by whom the record is kept to be a true copy of the entry, is admissible as prima facie evidence of the facts stated in the entry; and

(c)

a document purporting to be a record kept in accordance with the regulations or another law of the Commonwealth, or a law of a State or Territory, or purporting to be such a certified copy as is referred to in paragraph (b), is taken, unless the contrary is established, to be such a record or certified copy, as the case may be.

(2)

If, in any proceedings for an offence against this Part, a record referred to in paragraph (1)(a) is tendered as prima facie evidence of a fact stated in the record, the person alleged to have committed the offence may require the person who kept that record to be called as a witness for the prosecution in the proceedings.

303GS Evidence of examiner

(1)

The Minister may, by writing, appoint appropriately qualified persons to be examiners for the purposes of this Part.

(2)

Subject to subsection (4), a certificate signed by an examiner appointed under subsection (1) setting out, in relation to a substance, matter, specimen or thing, one or more of the following:

(a)

that he or she is appointed as the examiner under subsection (1);

(b)

when and from whom the substance, matter, specimen or thing was received;

(c)

what labels or other means of identification accompanied the substance, matter, specimen or thing when it was received;

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(d)

what container held the substance, matter, specimen or thing when it was received;

(e)

a description, including the weight, of the substance, matter, specimen or thing when it was received;

(f)

the name of any method used to analyse the substance, matter, specimen or thing or any portion of it;

(g)

the results of any such analysis;

(h)

how the substance, matter, specimen or thing was dealt with after handling by the examiner, including details of:

(i)

the quantity of the substance, matter, specimen or thing retained after analysis; and

(ii)

names of any persons to whom any of the substance, matter, specimen or thing was given after analysis; and

(iii) measures taken to secure any retained quantity of the

substance, matter, specimen or thing after analysis; is admissible in any proceeding for an offence against this Part as prima facie evidence of the matters in the certificate and the correctness of the results of the analysis.

(3)

For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) is taken to be such a certificate unless the contrary is established.

(4)

A certificate is not to be admitted in evidence in accordance with subsection (2) in proceedings for an offence against this Part unless:

(a)

the person charged with the offence; or

(b)

a solicitor who has appeared for the person in those

proceedings; has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.

(5) Subject to subsection (6), if, under subsection (2), a certificate is admitted in evidence in proceedings for an offence against this Part, the person charged with the offence may require the person giving the certificate to be called as a witness for the prosecution

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Section 303GT

and cross-examined as if he or she had given evidence of the matters stated in the certificate.

(6)

Subsection (5) does not entitle the person charged to require the person giving a certificate to be called as a witness for the prosecution unless:

(a)

the prosecutor has been given at least 4 days notice of the person’s intention to require the examiner to be so called; or

(b)

the court, by order, allows the person charged to require the person giving the certificate to be so called.

(7)

Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.

303GT Protection of witness

(1)

A witness for the prosecution in any proceedings for an offence against this Part is not to be compelled to disclose:

(a)

the fact that the witness received any information; or

(b)

the nature of any information received by the witness; or

(c)

the name of the person who gave the witness any information.

(2)

An authorised officer who is a witness in any proceedings for an offence against this Part is not to be compelled to produce any report:

(a)

that was made or received by the authorised officer in confidence in his or her capacity as an authorised officer; or

(b)

that contains information received by the authorised officer in confidence.

(3)

Subsections (1) and (2) are to be disregarded in determining the compellability of witnesses in proceedings for an offence against a provision of this Act other than this Part.

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303GU Forms and declarations—persons arriving in Australia or an external Territory

The regulations may provide for forms to be completed, or declarations to be made, in relation to specimens by persons arriving in Australia or an external Territory.

303GV Saving of other laws

(1)

This Part is in addition to the following laws:

(a)

the Customs Act 1901;

(b)

the Quarantine Act 1908;

(c) any other law of the Commonwealth or of an external Territory, whether passed or made before or after the commencement of this Part.

(2)

The holder of a permit under this Part authorising the export or import of a specimen is not, by reason only of being the holder of the permit, exempt from compliance with any law referred to in paragraph (1)(a), (b) or (c) that applies in relation to that specimen.

(3)

Without limiting subsection (1), this Part, and regulations made for the purposes of this Part, do not authorise or permit the doing of any act in contravention of the Quarantine Act 1908 or of a law of an external Territory relating to quarantine.

303GW Part not to apply to certain specimens

Transhipment

(1) For the purposes of this Part, if a specimen is brought into Australia from a country:

(a)

for the purpose of transhipment to another country; or

(b)

as part of an aircraft’s stores or ship’s stores; that specimen:

(c)

is taken not to have been imported into Australia; and

(d)

when it leaves Australia, is taken not to be exported from Australia.

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Section 303GW

(2)

For the purposes of this Part, if a specimen is brought into an external Territory:

(a)

for the purpose of transhipment to another country; or

(b)

as part of an aircraft’s stores or ship’s stores; that specimen:

(c)

is taken not to have been imported into that Territory; and

(d)

when it leaves that Territory, is taken not to be exported from that Territory.

(3)

For the purposes of subsection (1), a specimen is to be taken to be brought into Australia for the purpose of transhipment to another country if, and only if:

(a)

the specimen is brought into Australia in the course of being transported to an identified person in the other country; and

(b)

any delay in its leaving Australia will be due solely to the arrangements for its transport; and

(c)

it will be under the control of the Customs all the time that it is in Australia.

(4)

For the purposes of subsection (2), a specimen is taken to be brought into an external Territory for the purpose of transhipment to another country if, and only if:

(a)

the specimen is brought into that Territory in the course of being transported to an identified person in the other country; and

(b)

any delay in its leaving that Territory will be due solely to the arrangements for its transport; and

(c)

it will be under the control of an authorised officer all the time that it is in that Territory.

Emergency

(5) For the purposes of this Part, if:

(a) the Minister, the Director of Animal and Plant Quarantine, a prescribed person or a prescribed organisation is satisfied that, in order to meet an emergency involving danger to the life or health of a human or an animal, it is necessary or desirable that a specimen that could be used in treating that

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person or animal should be sent out of, or brought into,

Australia or an external Territory; and

(b) that specimen is sent out of, or brought into, Australia or that

Territory, as the case requires, to meet that emergency; that specimen is taken not to have been exported or imported, as the case may be.

Quarantine

(6) Subject to subsections (1), (2) and (5), if, in accordance with the Quarantine Act 1908 or a law of an external Territory relating to quarantine, a person exercising powers under that Act or law imports a specimen that is subject to quarantine, then, for the purposes of this Part, that specimen is taken to have been imported by:

(a)

if a person holds a permit to import that specimen—the holder of that permit; or

(b)

in any other case—a person whose identity is not known;

but this subsection does not affect the commission of any offence committed before the importation of that specimen.

Definitions

(7) In this section:

aircraft’s stores and ship’s stores have the same meanings respectively as they have in Part VII of the Customs Act 1901.

303GX Part not to apply to certain specimens used by traditional inhabitants

(1) In this section:

area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (2).

Australian place means a place in Australia that is in the Protected Zone or in an area in the vicinity of the Protected Zone.

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Section 303GX

Papua New Guinea place means a place in Papua New Guinea that is in the Protected Zone or in an area in the vicinity of the Protected Zone.

prescribed specimen means a specimen of a kind specified in a notice in force under subsection (3).

Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.

Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.

traditional activities has the same meaning as in the Torres Strait Treaty.

traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.

(2)

The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone to be an area in the vicinity of the Protected Zone for the purposes of this section.

(3)

The Minister may, by notice published in the Gazette, declare that a specimen of a kind specified in the notice is a prescribed specimen for the purposes of this section.

(4)

For the purposes of this Part, if a prescribed specimen that is owned by, or is under the control of, a traditional inhabitant and that has been used, is being used or is intended to be used by him or her in connection with the performance of traditional activities in the Protected Zone or in an area in the vicinity of the Protected Zone, is:

(a)

brought to an Australian place from a Papua New Guinea place; or

(b)

taken from an Australian place to a Papua New Guinea place; then, subject to subsection (5), that specimen:

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(c)

in the case where the specimen is brought into Australia as mentioned in paragraph (a)—is taken not to have been imported into Australia; and

(d)

in the case where the specimen is taken from Australia as mentioned in paragraph (b)—is taken not to have been exported from Australia.

(5) If:

(a)

a prescribed specimen that has been brought into Australia is, under subsection (4), taken not to have been imported into Australia; and

(b)

that prescribed specimen is brought to a place in Australia that is not in the Protected Zone or in an area in the vicinity of the Protected Zone;

the prescribed specimen is taken to have been imported into Australia upon being brought to the place referred to in paragraph (b).

303GY When a specimen is lawfully imported

For the purposes of this Part, a specimen is lawfully imported if, and only if, it was imported and:

(a)

in a case where the specimen was imported after the commencement of this Part—it was not imported in contravention of this Part; or

(b)

in a case where the specimen was imported when the Wildlife Protection (Regulation of Exports and Imports) Act 1982 was in force—it was not imported in contravention of that Act; or

(c)

in a case where the specimen was imported before the commencement of the Wildlife Protection (Regulation of Exports and Imports) Act 1982—it was not imported in contravention of:

(i)

the Customs (Endangered Species) Regulations; or

(ii)

the Customs (Prohibited Imports) Regulations.

Chapter 5 Conservation of biodiversity and heritage Part 14 Conservation agreements

Section 304

Part 14—Conservation agreements