TERRITORY OF HEARD ISLAND AND McDONALD ISLANDS

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Migratory Birds (Amendment) Ordinance 1983

No. 1 of 1983

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Ordinance under the Heard Island and McDonald Islands Act 1953.

 Dated 15 September 1983.

 N. M. STEPHEN

 Governor-General

 By His Excellency’s Command,

BARRY JONES

Minister of State for Science and Technology

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An Ordinance to amend the Migratory Birds Ordinance 1980

Short title

 1. This Ordinance may be cited as the Migratory Birds (Amendment) Ordinance 1983.1

Principal Ordinance

 2. In this Ordinance, “Principal Ordinance” means the Migratory Birds Ordinance 1980.2

Interpretation

 3. Section 3 of the Principal Ordinance is amended –

 (a) by omitting the definition of “Agreement” in sub-section (1) and substituting the following definition:

“ ‘Agreement’ means the Agreement between the Government of Australia and the Government of Japan for the protection of migratory birds and birds in danger of extinction and their environment done at Tokyo in Japan on 6 February 1974 a copy of which in the English language is set out in Schedule 1;”; and

(b) by omitting “Schedule 1” from the definition of “bird of a species in danger of extinction” in sub-section (1) and substituting “Schedule 2”.

 4. Section 22 of the Principal Ordinance is repealed and the following section substituted:

Review of decision of Minister

 “22. (1) Where the Minister makes a decision—

 (a) refusing to approve an application for a permit under this Ordinance;

 (b) suspending a permit under sub-section 17 (1); or

 (c) cancelling a permit under paragraph 17 (2) (a),

he shall, by notice in writing within 30 days after the date of the decision, inform the person to whom the decision relates of the decision.

 “(2) An application may be made to the Administrative Appeals Tribunal for the review of a decision referred to in sub-regulation (1).

 “(3) A notice referred to in sub-regulation (1) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

 “(4) A failure to comply with the requirements of sub-regulation (3) in relation to a decision shall not be taken to affect the validity of the decision.”.

Schedule 1

 5. Schedule 1 to the Principal Ordinance is repealed and the following Schedules are substituted:

SCHEDULE 1 Section 3

AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND

THE GOVERNMENT OF JAPAN FOR THE PROTECTION OF

MIGRATORY BIRDS AND BIRDS IN DANGER OF

EXTINCTION AND THEIR ENVIRONMENT

 The Government of Australia and the Government of Japan,

 Considering that birds constitute an important element in the natural environment and play an essential role in enriching the natural environment and that this role may be enhanced by proper management thereof,

 Recognising the special international concern, as expressed, for example, at the United Nations Conference on the Human Environment, for the protection of migratory birds and birds in danger of extinction,

 Noting the existence of bilateral and multilateral agreements for the protection of migratory birds and birds in danger of extinction,

 Considering that many species of birds migrate between Australia and Japan and live seasonally in the respective countries and that there are certain species of birds which are in danger of extinction and also that co-operation between the two Governments is essential for the conservation of these birds, and

 Desiring to co-operate in taking measures for the management and protection of migratory birds and birds in danger of extinction and also for the management and protection of their environments,

 Have agreed as follows:

Article I

1. In this Agreement, the term “migratory birds” means:

 (a) the species of birds for which there is reliable evidence of migration between the two countries from the recovery of bands or other markers; and

 (b) the species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries (excepting those whose non-migratory nature is biologically evident).  The identification of these species and subspecies shall be based upon specimens, photographs or other reliable evidence.

2. (a) The list of species defined as migratory birds in accordance with paragraph 1 of this Article is contained in the Annex to this Agreement.

 (b) The competent authorities of the two Governments shall review from time to time the Annex and, if necessary, make recommendations to their respective Governments to amend it.

 (c) The Annex shall be considered amended three months after the date upon which the two Governments confirm, by an exchange of diplomatic notes, their respective acceptance of such recommendations.

Article II

1. Each Government shall prohibit the taking of migratory birds or their eggs.  However, exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations in force in each country in the following cases:

SCHEDULE 2 - continued

 (a) for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement;

 (b) for the purposes of protecting persons and property;

 (c) during hunting seasons established in accordance with paragraph 3 of this Article; and

 (d) to allow the hunting and gathering of specified birds or their eggs by the inhabitants of certain regions who have traditionally carried on such activities for their own food, clothing or cultural purposes, provided that the population of each species is maintained in optimum numbers and that adequate preservation of the species is not prejudiced.

2. Each Government shall prohibit any sale, purchase or exchange of migratory birds or their eggs, whether they are alive or dead, except those taken in accordance with the second sentence of paragraph 1 of this Article, or of the products thereof or their parts.

3. Each Government may establish seasons for hunting migratory birds taking into account the maintenance of normal annual reproduction of those birds.

Article III

1. Each Government shall take special protective measures, as appropriate, for the preservation of species or subspecies of birds which are in danger of extinction.

2. Whenever either Government has determined the species or subspecies of birds which are in danger of extinction and taken special protective measures therefor, the Government shall inform the other Government of such determination and of any cancellation thereafter of such determination.

3. Each Government shall control the exportation or importation of such species or subspecies of birds as are determined in accordance with paragraph 2 of this Article, and of the products thereof.

Article IV

1. The two Governments shall exchange data and publications regarding research on migratory birds and birds in danger of extinction.

2. Each Government shall encourage the formulation of joint research programs on migratory birds and birds in danger of extinction.

3. Each Government shall encourage the conservation of migratory birds and birds in danger of extinction.

Article V

 Each Government shall endeavour to establish sanctuaries and other facilities for the management and protection of migratory birds and birds in danger of extinction and also of their environment.

Article VI

1. Each Government shall endeavour to take appropriate measures to preserve and enhance the environment of birds protected under the provisions of this Agreement.  In particular, it shall:

 (a) seek means to prevent damage to such birds and their environment;

SCHEDULE 1 - continued

 (b) endeavour to take such measures as may be necessary to control the importation of animals and plants which it determines to be hazardous to the preservation of such birds; and

 (c) endeavour to take such measures as may be necessary to control the introduction of animals and plants which could disturb the ecosystems of unique island environments.

Article VII

 Each Government agrees to take measures necessary to carry out the purposes of this Agreement.

Article VIII

 Upon the request of either Government, the two Governments shall hold consultations regarding the operation of this Agreement.

Article IX

1. This Agreement shall be ratified and the instruments of ratification shall be exchanged at Canberra as soon as possible.

2. This Agreement shall enter into force on the date of the exchange of the instruments of ratification.  It shall remain in force for fifteen years and shall continue in force thereafter until terminated as provided herein.

3. Either Government may, by giving one year’s notice in writing, terminate this Agreement at the end of the initial fifteen year period or at any time thereafter.

 IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Agreement.

  DONE in duplicate, in the English and Japanese languages, each text being equally authentic, at Tokyo, this sixth day of February, one thousand nine hundred and seventy-four.

SCHEDULE 2 Section 3

BIRDS OF SPECIES IN DANGER OF EXTINCTION

SCHEDULE 2 – continued

Schedule 2

 6. Schedule 2 to the Principal Ordinance is amended by omitting from the heading –

“SCHEDULE 2”

and substituting –

“SCHEDULE 3”.

Repeal of Schedule 3

 7. Schedule 3 to the Principal Ordinance is repealed.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 22 September 1983.

2. No. 2, 1980 as amended by No. 1, 1982.