Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1995

No. 121 of 1995

CONTENTS

Section

1. Short title

2. Commencement

3. Amendments

SCHEDULE 1

DEFINITIONS OF “ANIMAL SPECIMEN” AND “PLANT SPECIMEN"

SCHEDULE 2

POWERS OF THE DESIGNATED AUTHORITY AND THE MINISTER

CONTENTS—continued

SCHEDULE 3

MANAGEMENT PROGRAMS AND CONTROLLED SPECIMENS

SCHEDULE 4

IMPORT OF CERTAIN SPECIMENS

SCHEDULE 5

ZOOLOGICAL EXPORT OF LIVE ANIMALS

SCHEDULE 6

EXPORT OF HOUSEHOLD PETS

SCHEDULE 7

DURATION OF CERTAIN PERMITS

SCHEDULE 8

MARKING OF CERTAIN SPECIMENS FOR IDENTIFICATION PURPOSES

SCHEDULE 9

ARRANGEMENTS RELATING TO ENFORCEMENT ETC.

SCHEDULE 10

NOTIFICATION OF PERMITS AND AUTHORITIES ETC.

SCHEDULE 11

IDENTITY CARDS FOR INSPECTORS

SCHEDULE 12

APPLICATIONS

SCHEDULE 13

PROPOSALS FOR THE AMENDMENT OF SCHEDULE 6 TO THE WILDLIFE PROTECTION (REGULATION OF EXPORTS AND IMPORTS) ACT 1982

SCHEDULE 14

REGULATION OF THE POSSESSION OF CLASSIFIED EXOTIC BIRDS

SCHEDULE 15

ADDITIONAL OFFENCES RELATING TO THE IMPORT OR EXPORT OF SPECIMENS

SCHEDULE 16

PENALTIES AND OFFENCES

CONTENTS—continued

SCHEDULE 17

LIMITATION OF POWERS OF INSPECTORS

SCHEDULE 18

OBJECT OF ACT

SCHEDULE 19

POWERS OF SEARCH, ENTRY AND SEIZURE

Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1995

No. 121 of 1995

An Act to amend the Wildlife Protection (Regulation of Exports and Imports) Act 1982, and for related purposes

[Assented to 2 November 1995]

The Parliament of Australia enacts:

Short title

1. This Act may be cited as the Wildlife Protection (Regulation of Exports and Imports) Amendment Act 1995.

Commencement

1. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Subject to subsections (3) and (4), the items of the Schedules commence on a day or days to be fixed by Proclamation.

(3) If an item of a Schedule (other than an item of Schedule 14) does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(4) If an item of Schedule 14 does not commence under subsection (2) within the period of 11 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

Amendments

3. The Wildlife Protection (Regulation of Exports and Imports) Act 1982 is amended in accordance with the applicable items in the Schedules, and the other items in the Schedules have effect according to their terms.

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SCHEDULE 1 Section 3

DEFINITIONS OF “ANIMAL SPECIMEN” AND “PLANT SPECIMEN”

1. Subsection 4(1) (paragraph (d) of the definition of “animal specimen”):

Omit the paragraph, substitute:

“(d) any article wholly produced by or from, or otherwise wholly, derived from, a single animal;

but does not include:

(e) a fossil; or

(f) a mineralised deposit;”.

2. Subsection 4(1) (definition of “plant”):

After “kingdom” insert “, and includes fungi”.

3. Subsection 4(1) (paragraph (d) of the definition of “plant specimen”):

Omit the paragraph, substitute:

“(d) any article wholly produced by or from, or otherwise wholly derived from, a single plant;

but does not include:

(e) a fossil; or

(f) a mineralised deposit;”.

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SCHEDULE 2 Section 3

POWERS OF THE DESIGNATED AUTHORITY AND THE MINISTER

1. Subsections 23(4) and (5):

Omit “(including the purpose of enabling the Designated Authority to advise the Minister in relation to the application)”.

2. Amendment of listed provisions

(1) Each of the following provisions of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 is amended by omitting “the Designated Authority has advised the Minister that the Designated Authority is satisfied” and substituting “the Minister is satisfied”:

section 25

section 26

subsections 27(1) and (2)

sections 28, 29, 30, 31,33 and 34

subsections 32(2) and (3)

subsections 35(1), (2) and (3)

subsections 36(1) and (2)

subsections 37(1) and (2) section 38

subsection 41(4)

subsections 42(4) and (5)

subsection 42A(7)

subsection 42B(9)

subsection 43(6) paragraph 44(1)(b)

subsection 56A(3).

(2) If section 56A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 is repealed before the commencement of this item, the list in subitem (1) has effect as if it did not include a reference to subsection 56A(3) of that Act.

3. Paragraph 44(1) (c):

Omit all the words before “is satisfied that:”, substitute “even though the Minister is not satisfied in relation to that matter, the Minister”.

4. Subsection 76(4):

Omit the subsection.

SCHEDULE 2—continued

5. Paragraph 80(1)(e):

Omit “Designated Authority that the Designated Authority”, substitute “Minister that the Minister”.

6. Paragraph 80(1)(k):

Omit “Designated Authority that the Designated Authority”, substitute “Minister that the Minister”.

7. Subsection 80(2):

Omit “Designated Authority that the Designated Authority”, substitute “Minister that the Minister”.

8. Saving—AAT review of pre-commencement decisions

Despite the amendments of section 80 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 made by this Schedule, that section continues to apply, in relation to a decision of the Designated Authority made before the commencement of this item, as if those amendments had not been made.

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SCHEDULE 3 Section 3

MANAGEMENT PROGRAMS AND CONTROLLED SPECIMENS

1. Subsection 10(1):

After “Subject to” insert “subsection (1B) and to”.

2. Before subsection 10(2):

Insert:

“(1B) If:

(a) a management program has been, is being, or is proposed to be, carried out in a State or Territory; and

(b) the management program relates to the protection, conservation or management of particular animals or of particular plants, or of both;

the Minister must not make a declaration about the management program unless:

(c) legislation relating to the protection, conservation or management of the animals or plants is in force in the State or Territory; and

(d) the legislation applies throughout the State or Territory; and

(e) in the opinion of the Minister, the legislation is effective.”.

3. Subsection 10(2):

Omit the subsection, substitute:

“(2) The regulations may provide that the Minister must not declare a management program to be an approved management program unless the Minister is satisfied of certain matters in relation to the program.”.

4. After subsection 10(2):

Insert:

“(2A) A declaration under subsection (1) 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 (3).

“(2B) If a declaration ceases to be in force because of subsection (2A), this Act does not prevent the Minister from making a fresh declaration under subsection (1).

“(2C) A fresh declaration under subsection (1) may be made during the 90-day period before the time when the current declaration ceases to be in force.

SCHEDULE 3—continued

“(2D) A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period.”.

5. Subsection 10(3):

Omit all the words and paragraphs after “complied with;”, substitute “but, in such a case, the instrument of declaration is to specify the period, circumstances or condition.”.

6. Section 10:

Add at the end:

“(4) If a declaration specifies circumstances as mentioned in subsection (3), the Minister must revoke the declaration if he or she is satisfied that those circumstances have ceased to exist.

“(5) The Minister may 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).

“(6) The Minister must revoke a declaration if he or she is satisfied that a condition of the declaration has been contravened.

“(7) The Minister may revoke a declaration at any time.”.

7. After subsection 10A(2):

Insert:

“(2A) Except in special circumstances, the Minister must not make a declaration under subsection (2) about specimens of a particular kind unless:

(a) legislation relating to the protection, conservation or management of the specimens is in force in each State and Territory from which the specimens are to be taken; and

(b) the legislation applies throughout each State and Territory from which the specimens are to be taken; and

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

8. After subsection 10A(3):

Insert:

“(3A) A declaration under subsection (2) or (3) 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 (4).

SCHEDULE 3—continued

“(3B) If a declaration ceases to be in force because of subsection (3A), this Act does not prevent the Minister from making a fresh declaration under subsection (2) or (3).

“(3C) A fresh declaration under subsection (2) or (3) may be made during the 90-day period before the time when the current declaration ceases to be in force.

“(3D) A fresh declaration that is made during that 90-day period takes effect immediately after the end of that period.”.

9. Subsection 10A(4):

Omit all the words and paragraphs after “a particular condition;”, substitute “but, in such a case, the instrument of declaration is to specify the period, quantity, circumstances or condition.”.

10. After subsection 10A(4):

Insert:

“(4A) If a declaration specifies circumstances as mentioned in subsection (4), the Minister must revoke the declaration if he or she becomes satisfied that those circumstances have ceased to exist.

“(4B) The Minister may vary a declaration by:

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

(b) revoking or varying any condition:

(i) specified in the instrument of declaration; or

(ii) specified under paragraph (a).

“(4C) The Minister must revoke a declaration if he or she becomes satisfied that a condition of the declaration has been contravened.

“(4D) The Minister may revoke a declaration at any time.”.

11. Subsection 10A(5):

Omit the subsection, substitute:

“(5) The regulations may prescribe matters that are to be taken into account by the Minister when deciding whether or not to declare specimens to be controlled specimens under subsection (2) or (3).”.

12. Paragraphs 80(1)(aa), (ab) and (ac):

Omit the paragraphs, substitute:

“(aa) a decision of the Minister under subsection 10(4), (6) or (7) to revoke a declaration;

SCHEDULE 3—continued

(ab) a decision by the Minister under subsection 10(5) to vary a declaration;

(ac) a declaration by the Minister under subsection 10A(2) or (3);

(ad) a decision of the Minister under subsection 10A(4A), (4C) or (4D) to revoke a declaration;

(ae) a decision by the Minister under subsection 10A(4B) to vary a declaration;”.

13. Application

Despite the repeal of paragraphs 80(1) (aa), (ab) and (ac) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 effected by this Schedule, those paragraphs continue to apply, in relation to a declaration or revocation, as the case requires, made before the commencement of this item, as if those repeals had not happened.

14. Transitional—declarations about management programs

If:

(a) a declaration under subsection 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 in relation to a management program is in force immediately before the commencement of this item; and

(b) the instrument of declaration does not specify a period for the purposes of subsection 10(3) of that Act;

the declaration expires on the commencement of this item. However, this item does not prevent the Minister from making a fresh declaration under subsection 10(1) of that Act in relation to the management program.

15. Transitional-declarations about controlled specimens

if

(a) a declaration under subsection 10A(2) or (3) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 in relation to a specimen is in force immediately before the commencement of this item; and

(b) the instrument of declaration does not specify a period for the purposes of subsection 10A(4) of that Act;

the declaration expires on the commencement of this item. However, this item does not prevent the Minister from making a fresh declaration under subsection 10A(2) or (3) of that Act in relation to the specimen.

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SCHEDULE 4 Section 3

IMPORT OF CERTAIN SPECIMENS

1. After paragraph 22(a):

Insert:

“(aa) a specimen specified in Part I of Schedule 2A; or”.

2. Subsection 35(1):

Omit “or Part I of Schedule 3”, substitute Part I of Schedule 2A or Part I of Schedule 3”.

3. Subparagraph 36(1)(c)(i):

Add at the end “or”.

4. Subsection 37(1):

Omit “subsection (2)”, substitute “subsections (2) and (3)”.

5. Section 37:

Add at the end:

“(3) The Minister may grant a permit to import a specimen specified in Part I of Schedule 2, other than a live animal, if the Minister is satisfied that:

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

(b) permission to export that specimen from that country has been given by a relevant authority of that country; and

(c) the specimen is not an object of trade.”.

6. After section 38:

Insert:

Requirements for permits to import—Schedule 2A

“38A. The Minister must not grant a permit to import a specimen specified in Part I of Schedule 2A unless the Minister is satisfied:

(a) in a case where the import is not by way of introduction from the sea and the country from which the specimen is imported is specified in a column of Part II or III of that Schedule opposite the name of the species to which the specimen belongs—that:

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

(ii) permission to export that specimen from that country has been given by a relevant authority of that country; and

SCHEDULE 4—continued

(b) in a case where the import is not by way of introduction from the sea and the country from which the specimen is imported is not specified in a column of Part II or III of that Schedule opposite the name of the species to which the specimen belongs—that the proposed sender holds a certificate of origin, or an equivalent document or notation, in relation to the specimen; and

(c) in a case where the specimen is a live animal—that:

(i) the proposed sender is an approved institution in relation to a class of specimens that includes that live animal; or

(ii) the proposed import would be an inter zoological gardens transfer.”.

7. After Schedule 2:

Insert:

“SCHEDULE 2A Sections 22, 35 and 38A

CITES APPENDIX III SPECIMENS

A specimen, other than faeces, that is, or is derived from, an animal of a genus, species or sub-species specified, or described, in Part II.

A specimen, that is, or is derived from, a plant of a genus, species or sub-species specified, or described, in Part III, other than:

● a seed, spore, pollen (including pollinia), a tissue culture or flasked seedling culture; or

● a part or derivative of the specimen that is not readily recognisable.

SCHEDULE 4—continued

SCHEDULE 4—continued

SCHEDULE 4—continued

SCHEDULE 4-continued

SCHEDULE 4—continued

SCHEDULE 4—continued

SCHEDULE 4—continued

SCHEDULE 4—continued

SCHEDULE 4—continued

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SCHEDULE 5 Section 3

ZOOLOGICAL EXPORT OF LIVE ANIMALS

1. Paragraph 13(1)(a):

Add at the end “and”.

2. Paragraph 13(1)(b):

Omit the paragraph, substitute:

“(b) in the case of a specimen that is a live animal:

(i) in all cases—the animal is not required by the exporter or the sender, as the case may be, for the purposes of breeding, exhibition or research; and

(ii) if the animal was bred in captivity—the animal was bred in captivity by the exporter or the sender, as the case may be; and”.

3. Subsection 13(1):

Add at the end:

“; and (e) in the case of the export of a live native Australian animal;

(i) the animal belongs to a species that can readily be bred in captivity; and

(ii) the animal is for use in a breeding program specified in the regulations; and

(f) in the case of a live animal specified in Part I of Schedule 1:

(i) the animal belongs to a species that can be bred in captivity; and

(ii) the animal is for use in a breeding program specified in the regulations.”.

4. After section 47:

Insert:

Export of live native Australian animals by way of inter zoological gardens transfer—special conditions in respect of permits or authorities

When section applies

“47A.(1) This section applies to a permit granted, or an authority given, to export a live native Australian animal by way of an inter zoological gardens transfer.

SCHEDULE 5—continued

Conditions relating to agreements

“(2) Without limiting the conditions that may be imposed under subsection 47(1) in respect of the permit or authority, a condition so imposed may:

(a) require the exporter of the animal to enter into a specified kind of legally enforceable agreement about the treatment or disposal of the animal and any progeny of the animal; and

(b) require the exporter of the animal to take reasonable steps to enforce the agreement.

Duration of permit or authority

“(3) For the purposes of section 48, the permit or authority is taken to be in force:

(a) throughout the life of the animal; and

(b) throughout the life, or lives, of any progeny of the animal;

or for such lesser period as the Designated Authority determines in writing.

Meaning of progeny

“(4) In this section:

‘progeny’ does not include animal reproductive material.”.

5. After paragraph 80(1)(s):

Insert:

“(sa) a decision by the Designated Authority under subsection 47A(3);”.

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SCHEDULE 6 Section 3

EXPORT OF HOUSEHOLD PETS

1. Paragraph 16(1)(a):

After “Schedule 7” insert “, other than the species Melopsittacus undulatus (common name budgerigar)”.

2. Paragraph 16(1)(b):

Omit the paragraph, substitute:

“(b) the exporter kept the animal as a household pet immediately before the export;”.

3. Paragraphs 16(1) (e) and (f):

Omit the paragraphs, substitute:

“(e) it is not proposed to export (whether by virtue of this subsection or otherwise) more than one other animal of a species specified in Schedule 7 (other than a budgerigar), where that other animal has been kept as a household pet by the exporter or the members of the household of the exporter.”.

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SCHEDULE 7 Section 3

DURATION OF CERTAIN PERMITS

1. Paragraph 24(5) (b):

Omit the paragraph, substitute:

“(b) subject to section 46, remains in force:

(i) in the case of a permit to export or import a specimen (other than a specimen specified in Part I of Schedule 1, Part I of Schedule 2 or Part I of Schedule 3) for the purposes of scientific research—for a period of 2 years beginning on the date on which it is granted or, if a lesser period is specified in the permit, that lesser period; or

(ii) in any other case—for a period of 6 months beginning on the date on which it is granted or, if a lesser period is specified in the permit, that lesser period,”.

2. Application

The amendment made by this Schedule applies to a permit granted after the commencement of this item.

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SCHEDULE 8 Section 3

MARKING OF CERTAIN SPECIMENS FOR IDENTIFICATION PURPOSES

1. After Division 6 of Part II:

Insert:

“Division 6A—Marking of certain specimens for the purposes of identification

Object

“51A. The object of this Division is:

(a) to comply with Australia’s obligations under:

(i) the Convention on Biological Diversity; and

(ii) the Convention (as defined by subsection 4(1)); 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: Article 8 of the Convention on Biological Diversity requires each Contracting Party to, among other things, as far as possible and as appropriate:

● promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; and

● prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; and

● develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.

Specimens to which Division applies

“51B. This Division applies to a live specimen belonging to a species specified in the regulations if:

(a) the specimen has been imported in accordance with a permit or authority; or

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

Extended meaning of “marking”

“51C. A reference in this Division to the marking of a specimen includes a reference to the following:

SCHEDULE 8—continued

(a) in the case of a live plant:

(i) the marking or labelling of a container within 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.

Designated Authority may make determinations about marking of specimens

Determinations

“51D.(1) The Designated Authority 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 Designated Authority 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

(f) require that marking be carried out by persons approved in writing by the Designated Authority 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 Designated Authority under that determination.

SCHEDULE 8—continued

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.

Offences

Owner to ensure specimens marked etc.

“51E.(1) If a determination under section 51D applies to a specimen, the owner of the specimen must comply with the determination.

Person not to remove or interfere with mark etc.

“(2) If a specimen is marked in accordance with a determination under section 51D, a person must not:

(a) remove the mark; or

(b) interfere with the mark; or

(c) render the mark unusable;

except in accordance with a determination under that section.

Offence

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

Concurrent operation of State and Territory laws

“51E. This Division is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Division.”.

2. Subsection 80(1):

After “review of” insert “any of the following decisions”.

3. Paragraph 80(1)(u):

Omit “or” (last occurring).

SCHEDULE 8—continued

4 After paragraph 80(1)(u):

Insert:

“(ua) a decision of the Designated Authority under a determination in force under section 51D;”.

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SCHEDULE 9 Section 3

ARRANGEMENTS RELATING TO ENFORCEMENT ETC.

1. Section 77:

Add at the end:

“(2) The Designated Authority may make arrangements with:

(a) an authority, agency or instrumentality of the Commonwealth; or

(b) the Secretary to a Department; or

(c) an authority, agency or instrumentality of a State or internal Territory; or

(d) the administration of an external Territory; or

(e) an authority, agency or instrumentality of a foreign country; or

(f) an organisation specified in the regulations;

about any matter in connection with:

(g) the administration or enforcement of this Act; or

(h) the implementation of the Convention.”.

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SCHEDULE 10 Section 3

NOTIFICATION OF PERMITS AND AUTHORITIES ETC.

1. Subsection 52(1):

Omit the subsection, substitute:

“(1) The Designated Authority must, from time to time, but not less frequently than every 12 months, prepare a document setting out particulars of:

(a) permits granted or authorities given; and

(b) refusals to grant permits or to give authorities; and

(c) specimens exported or imported in accordance with permits or authorities.

“(1A) The Designated Authority must:

(a) give a free copy of the document to any person who asks for a copy; and

(b) make the document available for inspection at each office of the Designated Authority.

“(1B) As soon as practicable after the Designated Authority prepares a document under subsection (1), the Designated Authority must publish a notice in the Gazette:

(a) stating that the document has been prepared; and

(b) setting out the effect of subsection (1A).”.

2 Subsections 52(2) and (3):

Omit “published in the Gazette”, substitute “set out in a document”.

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SCHEDULE 11 Section 3

IDENTITY CARDS FOR INSPECTORS

1. After subsection 61(2):

Insert:

“(3) A person who, without reasonable excuse, contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding one penalty unit.”.

2. Section 61:

Omit the penalty.

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SCHEDULE 12 Section 3

APPLICATIONS

1. After subsection 9(1):

Insert:

“(1A) A declaration under subsection (1) that relates to Schedule 6 may be made:

(a) on the Minister’s own initiative; or

(b) on written application being made to the Minister.”.

2. After subsection 10(1):

Insert:

“(1A) A declaration under subsection (1) may be made:

(a) on the Minister’s own initiative; or

(b) on written application being made to the Minister.”.

3. After subsection 10A(5):

Insert:

“(5A) A declaration under subsection (2) or (3) may be made:

(a) on the Minister’s own initiative; or

(b) on written application being made to the Minister.”.

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SCHEDULE 13 Section 3

PROPOSALS FOR THE AMENDMENT OF SCHEDULE 6 TO THE WILDLIFE PROTECTION (REGULATION OF EXPORTS AND IMPORTS) ACT 1982

1. Section 9:

Add at the end:

“Note: See section 9B for requirements about comments on proposed declarations relating to the amendment of Schedule 6.”.

2. Before paragraph 9A(1)(a):

Insert:

“(aa) proposals for declarations under section 9, where the declarations relate to the amendment of Schedule 6; and”.

3. Before paragraph 9B(1)(a):

Insert:

“(aa) make a declaration under section 9, where the declaration relates to the amendment of Schedule 6; or”.

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SCHEDULE 14 Section 3

REGULATION OF THE POSSESSION OF CLASSIFIED EXOTIC BIRDS

1. Title:

After “goods,” insert “and by regulating the possession of certain exotic birds,”.

2. Subsection 4(1) (definition of “holder”):

Add at the end:

“or (c) in relation to a registration certificate—the person who, or the partnership that, has been granted that certificate;”.

3. Subsection 4(1):

Insert:

“ ‘classified exotic bird’ means a bird (other than a native Australian bird) that belongs to a species that is not specified in Schedule 9;

'Exotic Birds Committee’ means the Exotic Birds Committee established by section 57U;

‘registration certificate’ means a registration certificate granted under section 57H;”.

4. After Part II:

Insert:

“PART IIA—REGULATION OF THE POSSESSION OF CLASSIFIED
EXOTIC BIRDS

“Division 1—Object

Object

“57A. The object of this Part is:

(a) to comply with Australia’s obligations under:

(i) the Convention on Biological Diversity; and

(ii) the Convention (as defined by subsection 4(1)); and

(b) otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries;

by regulating the possession of certain exotic birds.

Note: Article 8 of the Convention on Biological Diversity requires each Contracting Party to, among other things, as far as possible and as appropriate:

● promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; and

● prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; and

● develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.

SCHEDULE 14—continued

“Division 2—Prohibition of the unregistered possession of classified exotic
birds etc.

Unregistered possession of classified exotic birds

Possession of classified exotic birds

“57B.(1) Subject to this section, a person must not, after the end of the transitional period, intentionally possess a classified exotic bird if the person knows that, or is reckless as to whether, the bird is a classified exotic bird.

Penalty: Imprisonment for 5 years.

Possession in accordance with a registration certificate

“(2) Subsection (1) does not apply to the possession of a bird if the possession is in accordance with a registration certificate.

Possession by veterinary practitioners

“(3) Subsection (1) does not apply to the possession by a person of a bird if:

(a) the person is registered as a veterinary practitioner (however described) under a law of a State or Territory; and

(b) the possession is of a kind specified in the regulations.

This subsection does not, by implication, limit subsection (5).

Possession notified to Designated Authority during transitional period

“(4) Subsection (1) does not apply to the possession by a person of a bird if all of the following conditions are satisfied:

(a) the bird does not belong to a species specified in the regulations;

(b) the possession is at a time during the period of 90 days beginning at the end of the transitional period;

(c) the bird was in the possession of the person at any time during the transitional period;

(d) the person notified the Designated Authority in writing of the possession referred to in paragraph (c) before the end of the transitional period.

This subsection does not, by implication, limit subsection (5).

Possession of a kind specified in the regulations

“(5) Subsection (1) does not apply to the possession of a bird if the possession is of a kind specified in the regulations.

Definition

“(6) In this section:

‘transitional period’ means the period ending 30 days after the commencement of this section.

Note: Under section 57S, a partnership is treated as a person for the purposes of this Division.

SCHEDULE 14—continued

Unlawful transfers of possession of classified exotic birds

Offence

“57C.(1) A person must not intentionally transfer to another person (the “recipient”) possession of a classified exotic bird if:

(a) the person knows that, or is reckless as to whether, the bird is a classified exotic bird; and

(b) the recipient’s possession would contravene section 57B; and

(c) the person knows that, or is negligent as to whether, the recipient’s possession would contravene section 57B.

Penalty: 120 penalty units.

Negligence

“(2) For the purposes of this section, a person is taken to be negligent as to whether the recipient’s possession would contravene section 57B if, and only if, the person’s conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the recipient’s possession would contravene section 57B;

that the conduct merits criminal punishment.

“Division 3—Registration certificates

Application for registration certificate

“57D. A person may apply to the Designated Authority for a registration certificate authorising the applicant to possess birds belonging to one or more species of classified exotic bird specified in the application.

Note: This means that the application docs not have to identify individual birds—it only needs to specify the species.

Joint applications

“57E.(1) 2 or more persons may make a joint application under section 57D.

“(2) If a joint application is made, then, unless the contrary intention appears, a reference in this Division to the applicant is a reference to the joint applicants.

Form of application etc.

“57F. The application must be:

(a) in writing; and

(b) in accordance with the prescribed form or, if no form is prescribed, a form approved by the Minister.

SCHEDULE 14—continued

Further information

“57G. The Designated Authority may refuse to consider the application unless the applicant gives the Designated Authority such further information about the application as the Designated Authority requires.

Grant of registration certificate

“57H.(1) After considering the application, the Designated Authority must grant a registration certificate in accordance with the application.

“(2) This section has effect subject to section 57J (which deals with refusals).

Refusal of registration certificate

Designated Authority to refuse certificate if applicant disqualified

“57J.(1) Except in special circumstances, the Designated Authority must refuse to grant a registration certificate to an applicant or to joint applicants if, at the time the application is made, the applicant, or any of the joint applicants, as the case requires, is:

(a) a disqualified individual; or

(b) a disqualified body corporate; or

(c) a disqualified partnership.

Note: Subsections (2), (3) and (4) define “disqualified individual”, “disqualified body corporate” and “disqualified partnership” respectively.

Disqualified individual

“(2) For the purposes of this section, an individual is a disqualified individual at a particular time if the individual has been convicted of an offence against this Act during the 5-year period ending at that time.

Disqualified body corporate

“(3) For the purposes of this section, a body corporate is a disqualified body corporate at a particular time if:

(a) the body corporate has been convicted of an offence against this Act during the 5-year period ending at that time; or

(b) at that time, any of the following individuals is a disqualified individual:

(i) a director of the body corporate;

(ii) the secretary of the body corporate;

(iii) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.

SCHEDULE 14—continued

Disqualified partnership

“(4) For the purposes of this section, a partnership is a disqualified partnership at a particular time if, at that time:

(a) in a case where a partner is an individual—the partner is a disqualified individual; or

(b) in a case where a partner is a body corporate—the partner is a disqualified body corporate.

Extended meaning of "conviction”—orders under section 19B of the Crimes Act 1914

“(5) A reference in this section to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence.

Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.

Quashed convictions

“(6) A reference in this section to a conviction does not include a reference to a conviction that has been quashed.

Notification of refusal of application

“57K. If the Designated Authority refuses an application, the Designated Authority must give written notice of the refusal to the applicant.

Duration of registration certificate

When certificate comes into force

“57L.(1) A registration certificate (the ‘new certificate’) comes, or is taken to have come, into force:

(a) if:

(i) the applicant for the new certificate already holds a registration certificate (the ‘previous certificate’); and

(ii) the new certificate is granted by way of the renewal of the previous certificate; and

(iii) the application for the new certificate was made at least 14 days before the expiry of the previous certificate;

immediately after the expiry of the previous certificate; or

(b) in any other case:

(i) on the day on which the new certificate is granted; or

(ii) if the new certificate is granted during the period ending 30 days after the commencement of this section—at the end of that period.

SCHEDULE 14—continued

Period for which certificate remains in force

“(2) A registration certificate remains in force for such period, not exceeding 12 months, as the Designated Authority determines.

Conditions of registration certificate

“57M.(1) A registration certificate is subject to such conditions as are specified in the certificate.

“(2) The Designated Authority may, by written notice given to the holder or holders of a registration certificate:

(a) impose one or more further conditions to which the certificate is subject; or

(b) revoke or vary any condition:

(i) imposed under paragraph (a); or

(ii) specified in the certificate.

“(3) Without limiting the kinds of conditions to which a registration certificate may be subject, the conditions may relate to the following:

(a) the maximum number of classified exotic birds of a particular species that may be in the possession of the holder or holders of the certificate in accordance with the certificate;

(b) the keeping of records by the holder or holders of the certificate, where the records relate to classified exotic birds;

(c) the giving of information to the Designated Authority by the holder or holders of the certificate, where the information relates to classified exotic birds;

(d) if the registration certificate is held by a partnership—the giving of information to the Designated Authority about any change in the composition of the partnership;

(e) the care of classified exotic birds.

Offence of contravening conditions

“57N. The holder, or any of the holders, of a registration certificate must not intentionally contravene a condition of the certificate.

Penalty: 120 penalty units.

Surrender of registration certificate

“57P. The holder, or any of the holders, of a registration certificate may, at any time, surrender the certificate by:

(a) returning the certificate to the Designated Authority; and

(b) giving the Designated Authority written notice that the certificate is surrendered.

SCHEDULE 14—continued

Cancellation of registration certificate

“57Q.(1) Except in special circumstances, the Designated Authority must cancel a registration certificate at a particular time if, at that time, the holder, or any of the holders, of the certificate is:

(a) a disqualified individual (within the meaning of section 57J); or

(b) a disqualified body corporate (within the meaning of section 57J); or

(c) a disqualified partnership (within the meaning of section 57J).

“(2) Except in special circumstances, the Designated Authority must cancel a registration certificate if the holder, or any of the holders, of the certificate has contravened any of the conditions to which the certificate is subject.

“(3) If the Designated Authority cancels a registration certificate, the Designated Authority must give written notice of the cancellation to the holder or holders of the certificate.

“Division 4—Operation of State and Territory laws

Concurrent operation of State and Territory laws

“57R. Divisions 2 and 3 are not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with those Divisions.

“Division 5—Partnerships

Treatment of partnerships

“57S. Divisions 2 and 3 apply to a partnership as if the partnership were a person, but they apply with the following changes:

(a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;

(b) any offence against those Divisions that would otherwise be committed by the partnership is taken to have been committed by each partner who:

(i) aided, abetted, counselled or procured the relevant act or omission; or

(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

SCHEDULE 14—continued

Giving of documents to partnerships

“57T. For the purposes of Divisions 2 and 3, if a document is given to a partner of a partnership in accordance with section 28A of the Acts Interpretation Act 1901, the document is taken to have been given to the partnership.

“Division 6—Exotic Birds Committee

“Subdivision A—Establishment of Committee etc.

Exotic Birds Committee

Committee

“57U.(1) There is to be an Exotic Birds Committee.

Composition of Committee

“(2) The Exotic Birds Committee consists of the following members:

(a) a Chairperson;

(b) at least 12 other members.

Vacancy not to affect performance of functions etc.

“(3) The performance of the functions, or the exercise of the powers, of the Exotic Birds Committee is not affected only because of there being a vacancy or vacancies in the membership of the Committee.

Functions of Committee

General functions

“57V.(1) The functions of the Exotic Birds Committee are as follows:

(a) when requested to do so by the Minister, to advise the Minister about a matter relating to the operation of the exotic birds provisions;

(b) when requested to do so by the Minister, to review and report to the Minister about a matter relating to the operation of the exotic birds provisions;

(c) when requested to do so by the Designated Authority, to advise the Designated Authority about a matter relating to the operation of the exotic birds provisions.

Functions relating to birds notified under subsection 57B(4)

“(2) If:

(a) the Designated Authority is notified of the possession of a bird under subsection 57B(4); and

(b) the Designated Authority has not previously been given a notification under that subsection about a bird of the same species;

SCHEDULE 14—continued

the Designated Authority must request the Exotic Birds Committee to advise the Minister about whether or not birds of that species should be specified in Schedule 9.

Definition

“(3) In this section:

‘exotic birds provisions’ means the provisions of this Act and the regulations, to the extent to which they relate to classified exotic birds.

Appointment of members

Appointment by Minister

“57W.(1) A member of the Exotic Birds Committee is to be appointed by the Minister by written instrument.

Qualifications of Chairperson of Committee

“(2) The Minister may only appoint a person as the Chairperson of the Exotic Birds Committee if:

(a) in the opinion of the Minister, the person possesses qualifications and/or expertise relevant to the regulation of classified exotic birds; and

(b) the person is not an employee of the Commonwealth or of an authority of the Commonwealth; and

(c) the person does not hold a full-time office under a law of the Commonwealth.

Qualifications of other members of Committee

“(3) The Minister must ensure that each of the other members of the Exotic Birds Committee possesses such qualifications, experience or expertise as the Minister thinks relevant to the performance of the Committee’s functions.

Majority of members not to be Commonwealth employees

“(4) The Minister must ensure that persons employed by the Commonwealth or authorities of the Commonwealth do not constitute a majority of the members of the Exotic Birds Committee.

Majority of members not to represent any one body or group

“(5) The Minister must ensure that persons representing any one interest body or group do not constitute a majority of the members of the Exotic Birds Committee.

SCHEDULE 14—continued

“Subdivision B—Administrative provisions

Period of appointment

Term of office of Chairperson

“57X.(1) The Chairperson of the Exotic Birds Committee holds office for such term as is specified in the instrument of appointment. The term must not exceed 3 years.

Term of office of other members

“(2) The other members of the Exotic Birds Committee hold office at the pleasure of the Minister.

Basis on which members hold office

“57Y. A member of the Exotic Birds Committee holds office on a part-time basis.

Remuneration and allowances

Remuneration to be determined by Remuneration Tribunal

“57Z.(1) A member of the Exotic Birds Committee is to be paid such remuneration as is determined by the Remuneration Tribunal.

Remuneration to be prescribed if no determination in operation

“(2) If no determination of that remuneration is in operation, a member of the Exotic Birds Committee is to be paid such remuneration as is prescribed.

Allowances

“(3) A member of the Exotic Birds Committee is to be paid such allowances as are prescribed.

Section has effect subject to the Remuneration Tribunal Act 1973

“(4) This section has effect subject to the Remuneration Tribunal Act 1973.

Leave of absence

Leave for Chairperson

“57ZA.(1) The Minister may, by writing, grant leave of absence to the Chairperson of the Exotic Birds Committee from a meeting of the Committee.

Leave for other members

“(2) The Chairperson of the Exotic Birds Committee may, by writing, grant leave of absence to another member of the Committee from a meeting of the Committee.

SCHEDULE 14—continued

Acting appointments

Acting Chairperson

“57ZB.(1) The Minister may appoint a member of the Exotic Birds Committee to act as the Chairperson of the Committee:

(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Chairperson is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during the vacancy is not to continue so to act for more than 6 months.

Acting member

“(2) The Minister may appoint a person to act as a member of the Exotic Birds Committee (other than as the Chairperson of the Committee):

(a) during a vacancy in an office of member, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when a member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during the vacancy is not to continue so to act for more than 6 months.

Validation

“(3) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

Disclosure of interests

Disclosure

“57ZC.(1) A member of the Exotic Birds Committee who has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the Committee must, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of the interest at a meeting of the Committee.

SCHEDULE 14—continued

Participation

“(2) A disclosure under subsection (1) is to be recorded in the minutes of the meeting of the Exotic Birds Committee and the member must not:

(a) be present during any deliberation of the Committee in relation to that matter; or

(b) take part in any decision of the Committee in relation to that matter.

Resignation

“57ZD. A member of the Exotic Birds Committee may resign by writing signed by him or her and sent to the Minister.

Termination of appointment

Misbehaviour or incapacity

“57ZE.(1) The Minister may terminate the appointment of a member of the Exotic Birds Committee because of misbehaviour or physical or mental incapacity.

Bankruptcy, conflict of interest etc.

“(2) If a member of the Exotic Birds Committee:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(e) fails, without reasonable excuse, to comply with his or her obligations under section 57ZC or 57ZJ;

the Minister must terminate the appointment of the member.

Unauthorised absence

“(3) If a member of the Exotic Birds Committee is absent, except on leave granted under section 57ZA, from 3 consecutive meetings of the Committee, the Minister must terminate the appointment of the member.

Unsatisfactory performance of individual member

“(4) The Minister may terminate the appointment of a member of the Exotic Birds Committee if the Minister is of the opinion that the performance of the member has been unsatisfactory for a significant period of time.

Other terms and conditions

“57ZF. A member of the Exotic Birds Committee holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister by notice published in the Gazette.

SCHEDULE 14—continued

“Subdivision C—Operations of the Exotic Birds Committee

Meetings of the Exotic Birds Committee

Chairperson may convene meetings

“57ZG.(1) The Chairperson of the Exotic Birds Committee may convene a meeting of the Committee at any time.

When Chairperson must convene meeting

“(2) The Chairperson of the Exotic Birds Committee must convene a meeting of the Committee:

(a) at least once in each financial year; or

(b) whenever the greater of:

(i) 9 other members of the Committee; or

(ii) the number of members that constitutes a majority of the members for the time being holding office;

request in writing that a meeting be held.

Minister may convene meeting

“(3) The Minister may convene a meeting of the Exotic Birds Committee at any time.

Quorum

“(4) At a meeting of the Exotic Birds Committee, a quorum is constituted by the greater of:

(a) 9 members; or

(b) the number of members that constitutes a majority of the members for the time being holding office.

Quorum if member excluded under section 57ZC

“(5) If:

(a) a member of the Exotic Birds Committee who is present at a meeting is required by section 57ZC not to be present during the deliberations, or to take part in any decision, of the Committee with respect to a particular matter; and

(b) when the member leaves the meeting, there is no longer a quorum present;

the members remaining at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.

Chairperson to preside at meetings

“(6) The Chairperson of the Exotic Birds Committee is to preside at all meetings of the Committee at which he or she is present.

SCHEDULE 14—continued

Arrangements if Chairperson is not present at a meeting

“(7) If the Chairperson of the Exotic Birds Committee is not present at a meeting of the Committee, the Committee members present must elect one of their number to preside at the meeting.

Voting

“(8) Questions arising at a meeting of the Exotic Birds Committee are to be determined by a majority of the votes of the Committee members present and voting.

Vote of person presiding

“(9) The person presiding at a meeting of the Exotic Birds Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

Proceedings and minutes

“(10) The Exotic Birds Committee:

(a) may regulate the conduct of proceedings at its meetings as it thinks fit; and

(b) must cause minutes of those proceedings to be kept.

Note: Section 33B of the Acts Interpretation Act 1901 provides for the participation in a meeting by telephone etc.

Resolutions without meetings

Agreement with resolution

“57ZH.(1) A resolution is taken to have been passed at a meeting of the Exotic Birds Committee if, without meeting, a sufficient number of Committee members indicate agreement with a resolution in accordance with a method determined by the Committee under subsection (2).

Note: “Sufficient number of Committee members” is defined by subsection (3).

Determinations

“(2) Subsection (1) applies only if the Exotic Birds Committee:

(a) determines that it applies; and

(b) determines the method by which Committee members are to indicate agreement with a resolution.

Sufficient number of Committee members

“(3) In this section:

‘sufficient number of Committee members’, in relation to a resolution, means a majority of the number of members of the Exotic Birds Committee who would have been entitled to vote on the resolution at a meeting of the Committee if they had been present at the meeting.

SCHEDULE 14—continued

“Subdivision D—Other committees

Committees established by the Exotic Birds Committee

Other committees

“57ZI.(1) The Exotic Birds Committee may establish such other committees as it considers necessary to assist it in the performance of its functions.

Other committee to include at least one member of Exotic Birds Committee

“(2) A committee established under subsection (1) must include at least one member of the Exotic Birds Committee.

Exotic Birds Committee may determine procedures etc.

“(3) The Exotic Birds Committee may determine, in relation to a committee established under subsection (1):

(a) the manner in which the committee is to perform its functions; and

(b) the procedure to be followed at or in relation to meetings of the committee, including matters with respect to:

(i) the convening of meetings of the committee; and

(ii) the number of members of the committee that constitutes a quorum; and

(iii) the selection of a member of the committee to preside at meetings of the committee at which the chairperson of the committee is not present; and

(iv) the manner in which questions arising at a meeting of the committee are to be decided.

Minutes

“(4) A committee established under subsection (1) is to keep minutes of its proceedings.

Disclosure of interests

Disclosure

“57ZJ.(1) A member of a committee established under section 57ZI who has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the committee must, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of the interest at a meeting of the committee.

SCHEDULE 14—continued

Participation

“(2) A disclosure under subsection (1) is to be recorded in the minutes of the meeting and the member must not:

(a) be present during any deliberation of the committee in relation to that matter; or

(b) take part in any decision of the committee in relation to that matter.

Committee established by Exotic Birds Committee—member’s appointment to be terminated for non-disclosure of interests

When section applies

“57ZK.(1) This section applies to a member of a committee established under section 57ZI.

Appointment of member to be terminated for non-disclosure of interests

“(2) The Exotic Birds Committee must terminate the appointment of the member if the member fails, without reasonable excuse, to comply with section 57ZJ.

Power of termination not limited

“(3) Subsection (2) does not, by implication, limit the Exotic Birds Committee power to terminate the appointment of the member.

“Division 7—Monitoring of compliance

Monitoring powers

“57ZL. For the purposes of this Division, each of the following powers is a monitoring power in relation to particular premises:

(a) the power to search the premises;

(b) the power to take photographs (including a video recording), or to make sketches, of the premises or of any substance or thing at the premises;

(c) the power to inspect, examine and take samples of, any substance or thing on or in the premises;

(d) the power to take extracts from, or make copies of, any document, book or record on the premises;

(e) the power to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in paragraph (a), (b), (c) or (d).

SCHEDULE 14—continued

Monitoring searches—occupier gives consent

Entry by consent

“57ZM.(1) An inspector may, with the consent of the occupier of any premises, enter the premises for the purpose of finding out whether any or all of sections 57B, 57C and 57N are being complied with.

Entry for monitoring purposes

“(2) An inspector may only enter premises under subsection (1) to the extent that it is reasonably necessary for the purpose of finding out whether any or all of sections 57B, 57C and 57N are being complied with.

Exercise of monitoring powers

“(3) If an inspector enters premises under subsection (1), the inspector may exercise monitoring powers in relation to those premises.

Exercise of seizure powers

“(4) If an inspector enters premises under subsection (1), the inspector may exercise powers of seizure conferred on the inspector by section 69B or 69M.

Right to refuse to give consent

“(5) Before obtaining the consent of a person for the purposes of this section, an inspector must tell the person that the person may refuse to give consent.

Consent must be voluntary

“(6) An entry by an inspector in consequence of the consent of a person is not lawful unless the person voluntarily consented to the entry.

Production of identity card etc.

“(7) An inspector is not entitled to:

(a) enter premises under subsection (1); or

(b) exercise any powers referred to in subsection (3) or (4) in relation to premises;

if the occupier of the premises has required the inspector to produce written identification for inspection by the occupier and:

(c) if the inspector is a member of a police force—the inspector fails to produce, for inspection by the occupier, written evidence of the fact that the inspector is a member of that police force; or

(d) if the inspector is an officer of Customs—the inspector fails to produce, for inspection by the occupier, written evidence of the fact that the inspector is an officer of Customs; or

SCHEDULE 14—continued

(e) if the inspector is neither a member of a police force nor an officer of Customs—the inspector fails to produce the inspector’s identity card for inspection by the occupier.

Monitoring warrants

Application for monitoring warrant

“57ZN.(1) An inspector may apply to a Magistrate for a warrant under this section in relation to particular premises. The warrant is to be known as a monitoring warrant.

Issue of monitoring warrant

“(2) Subject to subsection (3), the Magistrate may issue the monitoring warrant if he or she is satisfied, by information on oath or affirmation, that it is reasonably necessary that the inspector should have access to the premises for the purpose of finding out whether any or all of sections 57B, 57C and 57N are being complied with.

Information about grounds for issue of monitoring warrant

“(3) The Magistrate must not issue the monitoring warrant unless the inspector or another person has given the Magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the Magistrate requires about the grounds on which the issue of the monitoring warrant is being sought.

Terms of warrant

“(4) The monitoring warrant must:

(a) authorise an inspector named in the monitoring warrant, with such assistance and by such force as is necessary and reasonable, from time to time while the monitoring warrant remains in force, to enter the premises and exercise monitoring powers; and

(b) state whether an entry under the monitoring warrant is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(c) specify the day (not more than 6 months after the issue of the monitoring warrant) on which the monitoring warrant ceases to have effect; and

(d) state the purpose for which the monitoring warrant is issued.

Seizure powers

“(5) If an inspector enters premises under a monitoring warrant, the inspector may exercise powers of seizure conferred on the inspector by section 69B or 69M.

SCHEDULE 14—continued

Details of monitoring warrant to be given to occupier etc.

“57ZO.(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the inspector named in the monitoring warrant must make available to that person a copy of the monitoring warrant.

Note: ‘Monitoring warrant’ is defined by subsection 57ZN(1).

“(2) The inspector named in the monitoring warrant must identify himself or herself to that person at the premises.

“(3) The copy of the monitoring warrant referred to in subsection (1) need not include the signature of the Magistrate or the seal of the relevant court.

Occupier entitled to be present during search

“57ZP.(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part 1C of the Crimes Act 1914, entitled to observe the search being conducted.

Note: ‘Monitoring warrant’ is defined by subsection 57ZN(1).

“(2) The right to observe the search being conducted ceases if the person impedes the search.

“(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

Announcement before entry

“57ZQ.(1) The inspector named in a monitoring warrant must, before any person enters premises under the monitoring warrant:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

Note: ‘Monitoring warrant’ is defined by subsection 57ZN(1).

“(2) An inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

(a) the safety of a person (including an inspector); or

(b) that the effective execution of the monitoring warrant is not frustrated.”.

SCHEDULE 14—continued

5. Subsection 72(1):

Omit “an application for a permit or an authority”, substitute “an application for a permit, an authority or a registration certificate”.

6. Subsection 76A(1):

Omit all the words after “by the Designated”, substitute the following word and paragraphs:

“Authority:

(a) delegate to an officer or employee of the Australian National Parks and Wildlife Service any or all of the powers of the Designated Authority under this Act, other than this power of delegation; or

(b) delegate to a State/Territory officer any or all of the powers of the Designated Authority under Division 3 of Part IIA.”.

7. Section 76A:

Add at the end:

“(4) If the Designated Authority delegates a power conferred on the Designated Authority by Division 3 of Part IIA to a State/Territory officer, the State/Territory officer may, by writing, sub-delegate the power to another State/Territory officer.

“(5) Section 34AA and paragraphs 34AB(a), (b) and (d) of the Acts Interpretation Act 1901 apply in relation to a sub-delegation in a corresponding way to the way in which they apply to a delegation.

“(6) Section 34A and paragraphs 34AB(c) and (d) of the Acts Interpretation Act 1901 apply to a sub-delegation as if it were a delegation.

“(7) In this section:

‘State/Territory officer’ means:

(a) a person who holds or performs the duties of an office or position under a law of a State or Territory; or

(b) a person who is employed by, or by an authority of, a State or Territory.”.

8. Subsection 80(1):

Add at the end:

“(w) a decision of the Designated Authority under subsection 57J(1) to refuse to grant a registration certificate;

(x) a determination by the Designated Authority under subsection 57L(2) of the period for which a registration certificate is to remain in force;

SCHEDULE 14—continued

(y) an imposition under subsection 57M(1) or (2) of conditions in respect of a registration certificate;

(z) a decision of the Designated Authority under subsection 57M(2) to vary or revoke a condition in respect of a registration certificate;

(za) a decision of the Designated Authority under subsection 57Q(1) or (2) to cancel a registration certificate.”.

9. Add at the end:

“SCHEDULE 9 Section 4

EXOTIC BIRDS THAT ARE NOT CLASSIFIED EXOTIC BIRDS

SCHEDULE 14—continued

10 Transitional—delegations

The amendment of subsection 76A(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 made by this Schedule does not affect the continuity of a delegation that was in force immediately before the commencement of this item.

______________

SCHEDULE 15 Section 3

ADDITIONAL OFFENCES RELATING TO THE IMPORT OR EXPORT
OF SPECIMENS

1. Before subsection 53(1):

Insert:

“(1A) The object of this section is:

(a) to comply with Australia’s obligations under:

(i) the Convention on Biological Diversity; and

(ii) the Convention (as defined by subsection 4(1)); and

(b) otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries;

by prohibiting the possession of illegally imported specimens and the progeny of such specimens.

Note: Article 8 of the Convention on Biological Diversity requires each Contracting Party to, among other things, as far as possible and as appropriate:

● promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; and

● prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; and

● develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.”.

2. Paragraph 53(1)(a):

After “this Act” insert “or any progeny of such a specimen”.

3. Paragraph 53(1)(b):

After “this Act” insert “or any progeny of such a specimen”.

4. Subsection 53(2):

Omit “in the person’s possession”.

5. After section 53:

Insert:

Cruelty—import or export of animals

“53A.(1) This section applies to:

(a) a live animal specified in Part I of Schedule 1, Part I of Schedule 2 or Part I of Schedule 3; or

(b) a live native Australian animal; or

(c) a live animal other than an animal specified in Part I of Schedule 5 or Part I of Schedule 6.

SCHEDULE 15—continued

“(2) If:

(a) a person exports an 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 person intentionally or recklessly contravenes section 21 in relation to the export of the animal;

the person is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

“(3) If:

(a) a person imports an 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 person intentionally or recklessly contravenes section 22 in relation to the import of the animal;

the person is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Imports of specimens contrary to the laws of a foreign country

“53B.(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 Act.

Penalty: Imprisonment for 5 years.

“(2) A prosecution must not be instituted for an offence against this section unless the relevant 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.”.

_____________

SCHEDULE 16 Section 3

PENALTIES AND OFFENCES

1. Section 21:

After “authority,” insert “intentionally or recklessly”.

2. Section 21:

Omit the penalty, substitute the following penalty:

“Penalty: 1,000 penalty units or imprisonment for 10 years, or both.”.

3. Section 22:

After “authority,” insert “intentionally or recklessly”.

4. Section 22:

Omit the penalty, substitute the following penalty:

“Penalty: 1,000 penalty units or imprisonment for 10 years, or both.”.

5. Section 48:

Omit “contravenes, or fails to comply with,”, substitute “intentionally contravenes”.

6. Section 48:

Omit all the words after “a fine”, substitute “not exceeding 120 penalty units.”.

7. Subsection 50(4):

Omit “contravenes, or fails to comply with,”, substitute “intentionally contravenes”.

8. Subsection 50(4):

Omit “$100,000”, substitute “600 penalty units”.

9. Subsection 51(4):

Omit “contravenes or fails to comply with,”, substitute “intentionally contravenes”.

10. Subsection 51(4):

Omit “$100,000”, substitute “600 penalty units”.

11. Subsection 53(5):

Omit “a fine not exceeding $100,000 or imprisonment for a period”, substitute “imprisonment for a term”.

SCHEDULE 16—continued

12. Subsection 62(9):

After “excuse,” insert “intentionally”.

13. Subsection 62(9):

Omit “$2,000”, substitute “60 penalty units”.

14. Subsection 66(1) (penalty):

Omit the penalty.

15. After subsection 66(1):

Insert:

“(1A) A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.”.

16. Subsection 67(3):

Omit “refuse or”, substitute “intentionally refuse or intentionally fail”.

17. Subsection 67(3) (penalty):

Omit “$2,000”, substitute “60 penalty units”.

18. Section 68:

Repeal the section.

19. Subsection 71A(1):

After “A person who” insert “intentionally or recklessly”.

20. Subsection 71A(1):

Omit “a fine not exceeding $5,000 or”.

21. Paragraph 72(1)(a):

Before “makes” insert “intentionally”.

22. Paragraph 72(1)(b):

Before “furnishes” insert “intentionally”.

23. Subsection 72(1):

Omit all the words after “on conviction,”, substitute “by imprisonment for a term not exceeding 2 years.”.

24. Paragraph 72(2)(a):

Before “makes” insert “intentionally”.

SCHEDULE 16—continued

25. Paragraph 72(2)(b):

Before “furnishes” insert “intentionally”.

26. Subsection 72(2):

Omit all the words after “on conviction,”, substitute “by a fine not exceeding 60 penalty units.”.

27. Section 73:

Repeal the section.

28. Paragraph 81(e):

Omit “$500”, substitute “10 penalty units”.

_____________

SCHEDULE 17 Section 3

LIMITATION OF POWERS OF INSPECTORS

1. Section 58:

Add at the end:

“(2) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.

“(3) If the Minister makes a determination under subsection (2) about a named individual, the Minister must give the individual a copy of the determination.”.

2. Section 60:

Add at the end:

“(4) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, who is an inspector because of this section does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.

“(5) If the Minister makes a determination under subsection (4) about a named individual, the Minister must give the individual a copy of the determination.”.

_____________

SCHEDULE 18 Section 3

OBJECT OF ACT

1. Section 3:

Omit all the words after “Australia and of other countries”.

______________

SCHEDULE 19 Section 3

POWERS OF SEARCH, ENTRY AND SEIZURE

1. Subsection 4(1) (definition of “premises”):

Omit the definition, substitute:

“ ‘premises’ includes a place and a conveyance;”.

2. Subsection 4(1):

Insert:

“ ‘conveyance’ includes an aircraft, vehicle or vessel;

‘eligible seizable item’ means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody;

‘evidential material’ means a thing relevant to an offence against this Act, including such a thing in electronic form;

‘executing inspector’, in relation to a warrant, means the inspector named in the warrant as being responsible for executing the warrant;

‘frisk search’ means:

(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person;

‘Magistrate’ means a Magistrate who is remunerated by salary or otherwise;

‘occupier’, in relation to a conveyance, means the person apparently in charge of the conveyance;

‘officer assisting’, in relation to a warrant, means:

(a) a person who is an inspector and who is assisting in executing the warrant; or

(b) a person who is not an inspector and who has been authorised by the relevant executing inspector to assist in executing the warrant;

‘ordinary search’ means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(b) an examination of those items;

‘recently used conveyance’, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search began;

SCHEDULE 19—continued

‘thing relevant to an offence against this Act’ means:

(a) anything with respect to which an offence against this Act has been committed or is suspected, on reasonable grounds, to have been committed; or

(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of an offence against this Act; or

(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing an offence against this Act;

‘warrant’ (except in Part IIA) means a warrant under Part III;

Note: Division 7 of Part IIA provides for monitoring warrants in relation to classified exotic birds.

‘warrant premises’ means premises in relation to which a warrant is in force;”.

3. Subsection 4(2):

Omit “, other than subsection 69A(1),”.

4. Subsection 45(2):

Omit “Subject to section 56A, for”, substitute “For”.

5. Sections 54 to 57 (inclusive):

Repeal the sections.

6. Part III (heading):

Omit “ADMINISTRATION”, substitute “ENFORCEMENT”.

7. Before section 58:

Insert:

“Division 1—Inspectors”.

8. Before section 62:

Insert:

“Division 2—Boarding of vessels etc. and access to premises by consent”.

9. Subsections 63(2), (3) and (4):

Omit the subsections.

SCHEDULE 19—continued

10. Subsection 63(5):

Omit “or in pursuance of a warrant granted under subsection (3)”.

11. Subsection 63(6):

Omit the subsection.

12. Paragraph 64(l)(a):

Add at the end “and”.

13. Subsection 64(1):

Add at the end:

“; and (d) to exercise powers of seizure conferred on the inspector by section 69B or 69M.”.

14. After section 64:

Insert:

“Division 3—Search warrants

When search warrants can be issued

Search of premises

“64A.(1) A Magistrate may issue a warrant authorising an inspector to search premises if the Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

Search of a person

“(2) A Magistrate may issue a warrant authorising an inspector to carry out an ordinary search or a frisk search of a person if the Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

Use of firearms

“(3) If the inspector applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the inspector must state that suspicion, and the grounds for that suspicion, in the information.

Statements in warrant—general

“(4) If a Magistrate issues a warrant, the Magistrate is to state in the warrant:

(a) the offence to which the warrant relates; and

SCHEDULE 19—continued

(b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c) the kinds of evidential material that are to be searched for under the warrant; and

(d) the name of the inspector who is to be responsible for executing the warrant; and

(e) the period for which the warrant remains in force, which must not be more than 7 days; and

(f) whether the warrant may be executed at any time or only during particular hours.

Statements in warrant—search of premises

“(5) The Magistrate is also to state, in a warrant in relation to premises:

(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (4)(c)) found at the premises in the course of the search that the executing inspector or an officer assisting believes on reasonable grounds to be:

(i) evidential material in relation to an offence to which the warrant relates; or

(ii) a thing relevant to another offence against this Act, where the other offence is an indictable offence;

if the executing inspector or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act; and

(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing inspector or an officer assisting suspects on reasonable grounds that the person has any evidential material or eligible seizable items in his or her possession.

Statements in warrant—search of a person

“(6) The Magistrate is also to state, in a warrant in relation to a person:

(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (4)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing inspector or an officer assisting believes on reasonable grounds to be:

(i) evidential material in relation to an offence to which the warrant relates; or