Commonwealth: Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (Cth)

Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 No. 82, 2001 An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for other purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Part 1—Amendments relating to wildlife Part 2—Transitional provisions relating to wildlife Part 3—Other amendments Schedule 2—Repeal of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 Wildlife Protection (Regulation of Exports and Imports) Act 1982 Schedule 3—Amendment of other Acts Biological Control Act 1984 Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 No. 82, 2001 An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for other purposes [Assented to 11 July 2001] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001. 2 Commencement (1) The following provisions of this Act commence on the day on which this Act receives the Royal Assent: (a) sections 1, 2 and 3; and (b) Part 3 of Schedule 1. (2) The remaining provisions of this Act commence on a day to be fixed by Proclamation. (3) If the remaining provisions of this Act do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Part 1—Amendments relating to wildlife 1 Subsection 224(2) After "this Division", insert "(other than an export/import provision)". 2 At the end of section 224 Add: (4) In this section: export/import provision means: (a) section 232A; or (b) section 232B; or (c) any other provision of this Division, in so far as that provision relates to section 232A or 232B. 3 Subdivision D of Division 3 of Part 13 (heading) Repeal the heading, substitute: Subdivision D—Offences relating to exports and imports 4 Before section 233 Insert: 232A Export of cetaceans (1) Subject to section 235, a person is guilty of an offence if the person exports: (a) a cetacean; or (b) a part of a cetacean; or (c) a product derived from a cetacean. (2) An offence against this section is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding 1,000 penalty units, or both. 232B Import of cetaceans (1) Subject to section 235, a person is guilty of an offence if the person imports: (a) a cetacean; or (b) a part of a cetacean; or (c) a product derived from a cetacean. (2) An offence against this section is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding 1,000 penalty units, or both. 5 Paragraph 233(1)(b) After "cetacean", insert ", part or product, as the case may be,". 6 Subsection 233(2) Omit "2 years", substitute "5 years". 7 Subsection 234(2) Omit "2 years", substitute "5 years". 8 Section 235 Omit "233", substitute "232A, 232B, 233". Note: The heading to section 235 is altered by omitting "233" and substituting "232A, 232B, 233". 9 Subsection 238(2) After "230,", insert "232A, 232B,". 10 At the end of subsection 238(3) Add: ; or (d) all of the following subparagraphs apply: (i) the specified action is the export of a part of a cetacean; (ii) the export of the part is an export that, under the regulations, is taken to be an export of a personal item; (iii) the export of the part will not be detrimental to the conservation of cetaceans; (iv) the export of the part is not for commercial purposes; or (e) all of the following subparagraphs apply: (i) the specified action is the import of a part of a cetacean; (ii) the import of the part is an import that, under the regulations, is taken to be an import of a personal item; (iii) the import of the part will not be detrimental to the conservation of cetaceans; (iv) the import of the part is not for commercial purposes. 11 After Part 13 Insert: 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 (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: (a) the exporter or importer holds a permit; or (b) 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: (a) the exporter holds a permit; or (b) 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. 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. 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. 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 (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 (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. 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. 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 (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. (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 (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): 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. 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). 5 CITES III Import The country from which the specimen is proposed to be imported has a relevant CITES authority, and permission to export the specimen from that country has been given by a relevant CITES authority of that country. 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 (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. 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. 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). (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. (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. 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 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). (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). (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. 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. (2) The register may be maintained by electronic means. (3) The register is to be made available for inspection on the Internet. 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. (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. (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. (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. 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. 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). 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 (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. 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). 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 (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. 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). 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 (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; (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: (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