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WILDLIFE PROTECTION (REGULATION OF EXPORTS AND IMPORTS) ACT

COMPILATION INFORMATION - NOTES [Note: Schedules containing amendments deemed to be made by Declaration (which are notified in the Gazette) have been shown separately in Note 2]

Act No. 149 of as amended

This compilation was prepared on 16 October 2000


taking into account amendments up to Act No. 146 of 1999
The text of any of those amendments not in force
on that date is appended in the Notes section
Contents Volume 2 includes: Notes
Prepared by the Office of Legislative Drafting,
Attorney-General's Department, Canberra

- LONG TITLE

An Act to further the protection and conservation of wildlife by regulating the export and import of certain animals, plants and goods, and by regulating the possession of certain exotic birds, and for related purposes
Part I--Preliminary
SECT 1 1 Short title [see - NOTES 1] This Act may be cited as the WILDLIFE PROTECTION REGULATION OF EXPORTS AND IMPORTS) ACT 1982

SECT 2 2 Commencement [see - NOTES 1] This Act shall come into operation on a date to be fixed by Proclamation.

SECT 3 3 Object of Act The object of this Act is to comply with the obligations of Australia under the Convention and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries.

SECT 4 4 Interpretation

(1)

In this Act, unless the contrary intention appears:



animal means any member, alive or dead, of the animal kingdom (other than man).

animal reproductive material means:

(a)


an embryo, an egg or sperm of an animal; or

(b)


any other part, or product, of an animal from which another animal could be produced.

animal specimen means:

(a)


an animal;

(b)


animal reproductive material;

(c)


the skin, feathers, horns, shell or any other part of an animal; or

(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.



approved institution means an organization declared by a declaration in force under section 11 to be an approved institution in relation to a class, or classes, of specimens.

approved management program means a management program declared by a declaration in force under section 10 to be an approved management program.

approved zoological organization means a zoological organization declared by a declaration in force under section 12 to be an approved zoological organization in relation to a class, or classes, of specimens.

article includes a substance or a mixture of substances.

artificially propagated, in relation to a plant or plant reproductive material, has the meaning given by section 15.

authority means an authority to export or to import a specimen given under section 41, 42, 43 or 44.

bred in captivity, in relation to an animal or animal reproductive material, has the meaning given by section 14.

care, in relation to an animal or a plant, includes, where appropriate, the provision of suitable housing for the animal or plant.

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

coastal sea:

(a)


in relation to Australia, means:

(i)


the territorial sea of Australia; and

(ii)


the sea on the landward side of the territorial sea of Australia; and

(b)


in relation to an external Territory, means:

(i)


the Territorial sea of that Territory; and

(ii)


the sea on the landward side of the territorial sea of that Territory.

continental shelf, in relation to Australia or to an external Territory, has the same meaning as it has for the purposes of the Seas and Submerged Lands Act 1973.

controlled specimen means a specimen that is a controlled specimen because of a declaration in force under section 10A.

Convention means the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington in the United States of America on 3 March 1973 (a copy of the version of which in the English language, apart from the Appendices to it, is set out in Schedule 8).

Convention listed animal means an animal of a species included in Appendix I, II or III to the Convention.

Note: These species are included in those listed in Schedules 1, 2, 2A and 3.



Convention listed plant means a plant of a species included in Appendix I, II or III to the Convention.

Note: These species are included in those listed in Schedules 1, 2, 2A and 3.



conveyance includes an aircraft, vehicle or vessel.

Designated Authority means the Designated Authority established by section 17.

disease means:

(a)


a disease, parasite or pest that, for the purposes of the Quarantine Act 1908, is a disease in relation to animals; or

(b)


a disease, pest or plant that, for the purposes of that Act, is a disease in relation to plants.

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.

Exotic Birds Committee means the Exotic Birds Committee established by section 57U.

export means export from Australia or from an external Territory, but does not include:

(a)


export from Australia to a prescribed Territory;

(b)


export from a prescribed Territory to Australia; and

(c)


export from a prescribed Territory to the other prescribed Territory.

fish means any animal that is a member of the class Pisces or of the class Agnatha, and includes a shark, a skate and a ray.

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.

holder means:

(a)


in relation to a permit—the person who has been granted that permit; or

(b)


in relation to an authority—the person who has been given that authority; or

(c)


in relation to a registration certificate—the person who, or the partnership that, has been granted that certificate.

import means import (including import by way of introduction from the sea) into Australia or into an external Territory, but does not include:

(a)


import into Australia from a prescribed Territory;

(b)


import into a prescribed Territory from Australia; and

(c)


import into a prescribed Territory from the other prescribed Territory.

inspector means:

(a)


a person appointed as an inspector under section 58;

(b)


a person who is an inspector by virtue of section 59; or

(c)


a person who is an inspector by virtue of an arrangement entered into under subsection 60(1), (2) or (3).

inter zoological gardens transfer has the meaning given by section 13.

live animal includes animal reproductive material.

live plant includes plant reproductive material.

Magistrate means a Magistrate who is remunerated by salary or otherwise.

management program means a program for the protection, conservation or management of animals or of plants, or of both.

marine environment means the sea, and includes:

(a)


the air space above the sea; and

(b)


the sea-bed and subsoil beneath the sea.

native Australian animal means:

(a)


an animal of a species that is indigenous to Australia or to an external Territory;

(b)


an animal of a species that is indigenous to the coastal sea of Australia or of an external Territory or to the sea-bed or subsoil beneath that sea;

(c)


an animal of a species that is indigenous to the continental shelf of Australia or of an external Territory or to the superjacent waters;

(d)


a migratory animal of a species that periodically or occasionally visits Australia or an external Territory, the coastal sea of Australia or of an external Territory, or the sea over the continental shelf of Australia or of an external Territory; or

(e)


an animal of a species that is not indigenous to Australia but was present in Australia before the year 1788.

native Australian plant means:

(a)


a plant of a species that is indigenous to Australia or to an external Territory;

(b)


a plant of a species that is indigenous to the coastal sea of Australia or of an external Territory or to the sea-bed or subsoil beneath that sea;

(c)


a plant of a species that is indigenous to the continental shelf of Australia or of an external Territory or to the superjacent waters; or

(d)


a plant of a species that is not indigenous to Australia but was present in Australia before the year 1788.

occupier, in relation to a conveyance, means the person apparently in charge of the conveyance.

offence against this Act includes:

(a)


an offence against section 6, 7 or 7A of the Crimes Act 1914 in relation to this Act; and

(b)


an offence against subsection 86(1) of the Crimes Act 1914 by virtue of paragraph (a) of that subsection, being an offence in relation to an offence against this Act.

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.

officer of Customs has the same meaning as it has in the Customs Act 1901.

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.

permit means a permit to export or to import a specimen granted under section 24.

plant means a member, alive or dead, of the plant kingdom, and includes fungi.

plant reproductive material means:

(a)


a seed or spore of a plant;

(b)


a cutting from a plant; or

(c)


any other part, or product, of a plant from which another plant can be produced.

plant specimen means:

(a)


a plant;

(b)


plant reproductive material;

(c)


any part of a plant; or

(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.



premises includes a place and a conveyance.

prescribed scientific organization means a scientific organization included in a class of scientific organizations declared by the regulations to be a prescribed class of scientific organizations for the purposes of this Act.

prescribed scientific research means scientific research engaged in by a prescribed scientific organization.

prescribed Territory means:

(a)


the Coral Sea Islands Territory; or

(b)


the Territory of Ashmore and Cartier Islands.

progeny includes:

(a)


in relation to a live animal—any animal reproductive material of that animal or of any progeny of that animal;

(b)


in relation to a live plant—any plant reproductive material of that plant or of any progeny of that plant;

(c)


in relation to a live animal that is animal reproductive material—any animal resulting from that material or any progeny of such animal; and

(d)


in relation to a live plant that is plant reproductive material—any plant resulting from that material or any progeny of such plant.

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.

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.

registration certificate means a registration certificate granted under section 57H.

relevant authority, in relation to a country, means:

(a)


where the country is a party to the Convention—a Management Authority of that country; or

(b)


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

scientific organization means an organization engaged in scientific research.

sender, in relation to a specimen that is imported into Australia or into 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.

specimen means:

(a)


an animal specimen; or

(b)


a plant specimen.

take includes:

(a)


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

(b)


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

territorial sea, in relation to Australia or to an external Territory, has the same meaning as it has for the purposes of the Seas and Submerged Lands Act 1973.

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.

vessel means a vessel or boat of any description, and includes:

(a)


an air-cushion vehicle or other similar craft; and

(b)


any floating structure.

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.

zoological organization means an organization engaged in the exhibition or breeding of wild animals.

(2)


In any other provision of this Act references to a specimen shall be read as including references to an article that consists of, or is derived from:

(a)


a specimen and material other than a specimen;

(b)


2 or more specimens; or

(c)


2 or more specimens and material other than a specimen.

(2A)


Where an article consists of, or is derived from 2 or more specimens, either with or without any material other than a specimen, then this Act applies to and in relation to that article separately in so far as it consists of, or is derived from, each of those specimens.

(2B)


For the purposes of this Act, if a thing is represented by an accompanying document, the package or a mark or label, or from any other circumstances, to be:

(a)


the skin, feathers, horns, shell or any other part of a Convention listed animal; or

(b)


part of a Convention listed plant; or

(c)


reproductive material from a Convention listed animal or a Convention listed plant; or

(d)


an article produced by or from, or derived from, one or more Convention listed animals or one or more Convention listed plants, whether with or without any other material;

then the thing is taken to be a specimen derived from the Convention listed animal or the Convention listed plant, or from each Convention listed animal or Convention listed plant, as the case requires.

Note: This subsection has the effect (among other things) of widening the scope of sections 21, 22 and 53, which are offence provisions relating to the export, import and possession of specimens.

(2C)


However, the import or export of a thing that is taken under subsection

(2B)


to be a specimen derived from an animal or plant of a particular kind is not to be taken to be in accordance with a permit or authority only because of the operation of that subsection.

Example: A person labels tiger bone as the bone of a Convention listed animal that the person is authorised by a permit to import, and imports the tiger bone. The mere fact that the tiger bone is labelled in that way does not mean that its import is in accordance with a permit.

(3)

A reference in this Act to a country shall be read as including a reference to a place that is a territory, dependency or colony (however described) of another country.



(4)

For the purposes of this Act, a specimen shall be taken to have been imported into Australia or into an external Territory by way of introduction from the sea if, and only if, the specimen was taken in the marine environment not under the jurisdiction of any country and then imported into Australia or the external Territory, as the case may be, without having been imported into any other country.

(5)

For the purposes of this Act:



(a)

where a live animal (other than animal reproductive material) that was bred in captivity dies, the dead animal and specimens derived from the dead animal shall be taken to be specimens derived from that live animal; and

(b)

where a live plant (other than plant reproductive material) that was artificially propagated dies, the dead plant and specimens derived from the dead plant shall be taken to be specimens derived from that live plant.



(6)

A reference in this Act to a member of the Australian Federal Police or to a member of a police force shall be read as including a reference to a special member of the Australian Federal Police.

(7)

Except so far as the contrary intention appears, an expression that is used in this Act without being defined in, or having a particular meaning assigned to it by, this Act and is used in the Convention (whether or not it is defined in, or a particular meaning is assigned to it by, the Convention) has, in this Act, the same meaning as it has in the Convention.



(8)

For the purposes of this Act, the doing of any thing to, or with, a live animal or a live plant (including killing the animal or plant or doing, or failing to do, any thing in relation to the housing of the animal or plant) for the purposes of scientific research shall not be taken to be failure to provide suitable care for the animal or plant.

(9)

For the purposes of this Act, where the common name of a kind of animal or plant is set out in a Schedule next to or under a taxon, that common name does not affect the meaning of that taxon.



(10)

For the purposes of this Act, a genus, species or sub-species referred to in a description set out in a Part of a Schedule shall not be taken to be specified in that Part.

SECT 5 5 Saving of other laws

(1)


This Act and the regulations shall be read and construed as being in addition to, and not in derogation of or in substitution for:

(a)


the Customs Act 1901;

(b)


the Quarantine Act 1908; or

(c)


any other law of the Commonwealth or of an external Territory, whether passed or made before or after the commencement of this Act.

(2)


A person who is the holder of a permit or an authority to export or to import a specimen is not, by reason only of being the holder of the permit or authority, exempt from compliance with any law referred to in paragraph (1)(a),

(b)


or (c) that applies in relation to that specimen.

(3)


Without limiting the generality of subsection (1), this Act and the regulations shall not be read or construed as authorizing or permitting the doing of any act in contravention of the Quarantine Act 1908 or of a law of an external Territory relating to quarantine.

SECT 6 6 Application of Act This Act applies both within and outside Australia and extends to every external Territory.

SECT 7 7 Act to bind Crown This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

SECT 8 8 Act not to apply to certain specimens

(1)

For the purposes of this Act, where a specimen is brought into Australia from a country (other than a prescribed Territory):



(a)

for the purpose of transhipment to another country; or

(b)

as part of an aircraft's stores or ship's stores;



that specimen:

(c)


shall be taken not to have been imported into Australia; and

(d)


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

(2)


For the purposes of this Act, where a specimen is brought into an external Territory (other than a prescribed Territory):

(a)


for the purpose of transhipment to another country; or

(b)


as part of an aircraft's stores or ship's stores;

that specimen:

(c)

shall be taken not to have been imported into that Territory; and



(d)

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

(3)

For the purposes of this Act, where a prescribed organization sends a specimen out of, or brings a specimen into, Australia or an external Territory for the purpose of using the specimen in a diagnostic test that is to be carried out in an endeavour to identify a disease of humans, animals or plants, that specimen shall be taken not to have been exported or imported, as the case may be.



(4)

For the purposes of this Act, where:

(a)

a prescribed person or a prescribed organization is satisfied that, in order to meet an emergency involving danger to the life or health of a human or an animal, it is necessary or desirable that a specimen that could be used in treating that person or animal should be sent out of, or brought into, Australia or an external Territory; and



(b)

that specimen is sent out of, or brought into, Australia or that Territory, as the case requires, to meet that emergency;

that specimen shall be taken not to have been exported or imported, as the case may be.

(5)


Subject to subsections (1), (2), (3) and (4), where, in accordance with the Quarantine Act 1908 or a law of an external Territory relating to quarantine, a person exercising powers under that Act or law imports a specimen that is subject to quarantine, then, for the purposes of this Act, that specimen shall be deemed to have been imported by:

(a)


where a person holds a permit or an authority to import that specimen—the holder of that permit or authority; or

(b)


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

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

(5A)

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



(a)

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

(b)

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



(c)

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

(5B)

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



(a)

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

(b)

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



(c)

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

(6)

In this section, aircraft's stores and ship's stores have the same meanings respectively as they have in Part VII of the Customs Act 1901.



SECT 8A 8A Act not to apply to certain specimens used by traditional inhabitants

(1)


In this section:

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

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

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

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

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

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

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

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

(2)


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

(3)


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

(4)


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

(a)


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

(b)


taken from an Australian place to a Papua New Guinea place;

then, subject to subsection (5), that specimen:

(c)

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



(d)

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

(5)

Where:


(a)

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

(b)

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



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

SECT 9 9 Variation of SCHEDULE s [see - NOTES 2]

(1)

The Minister may, by instrument under the Minister's hand published in the Gazette, declare that a Schedule, not being Schedule 5 or 8, specified in the instrument shall be deemed to be amended in a manner specified in the instrument, and that declaration shall have effect accordingly.



(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)

Sections 48 (other than paragraph (1)(a)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to declarations under subsection (1) as if, in those sections, references to regulations were references to declarations.



(3)

For the purposes of section 8 of the Acts Interpretation Act 1901, a declaration under subsection (1) that is deemed to amend a Schedule by way of repealing part of that Schedule shall be deemed to be an Act that repeals that part of that Schedule.

(4)

The Minister will take all necessary action to ensure that, where a Schedule is deemed to be amended by virtue of a declaration in force under subsection (1), a copy of that Schedule as deemed to be amended is readily available, on the payment of such fee (if any) as is prescribed, to any member of the public who might wish to export or to import, or is otherwise concerned with the export or import of, specimens.



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

SECT 9A 9A Register of persons concerned about amendments of SCHEDULE 6 or declarations of management programs or controlled specimens

(1)

The Designated Authority must maintain a register containing a list of the names and postal addresses of persons and organisations who are to be notified of:



(aa)

proposals for declarations under section 9, where the declarations relate to the amendment of Schedule 6; and

(a)

proposals for declarations of approved management programs under section 10; and



(b)

proposals for declarations of controlled specimens under section 10A.

(2)

As soon as practicable after the commencement of this section and on each anniversary of that commencement, the Designated Authority must give public notice:



(a)

inviting persons and organisations to have their names and postal addresses entered on the register; and

(b)

in the case of the second or a later notice given when there is a person or organisation on the register—inviting persons and organisations on the register to have their names and postal addresses left on the register.



(3)

A notice must state that the acceptance of an invitation:

(a)

is to be in writing sent to the Designated Authority at a place specified in the notice accompanied, except in the case of an invitation under paragraph (2)(b), by particulars of the name and postal address of the acceptor; and



(b)

is to be given:

(i)

in the case of a person, or organisation, in existence on the publication of the notice—within one month after that publication; and



(ii)

in any other case—within 12 months after that publication.

(4)

Where a person or organisation accepts an invitation in the way required by the notice, the Designated Authority is to enter, or retain, the name and postal address of the person or organisation on the register.



(5)

The Designated Authority may vary the address on the register of a person or organisation at the written request of the person or organisation.

(6)

The Designated Authority must remove the name and address of a person or organisation from the register if:



(a)

in the case of a name and address that was on the register before the most recent notice under subsection (2)—the invitation to keep that name and address on the register was not accepted within one month after the publication of that notice; or

(b)

the person or organisation makes a written request for the removal; or



(c)

the Designated Authority becomes satisfied that:

(i)

in the case of a natural person—the person has died; or



(ii)

in any other case—the person or organisation has ceased to exist.

(7)

In subsection (2), a reference to public notice is a reference to a notice published:



(a)

in the Gazette; and

(b)

in each State and internal Territory in a newspaper circulating generally in that State or Territory; and



(c)

in each external Territory that the Minister considers appropriate (if any) in a newspaper circulating generally in that external Territory.

SECT 9B 9B Views of concerned persons to be considered before making declarations

(1)


Where the Minister proposes to:

(aa)


make a declaration under section 9, where the declaration relates to the amendment of Schedule 6; or

(a)


declare an approved management program under section 10; or

(b)


declare a controlled specimen under section 10A;

the Designated Authority must send each person and organisation on the register maintained under section 9A written notice of the proposal and, without contravening the Privacy Act 1986, sufficient information to enable the person or organisation to consider adequately the merits of the proposal.

(2)

A person or organisation on the register may give the Designated Authority written comments on the proposal within one month after its receipt of the notice or such longer period as the Designated Authority determines.



(3)

The Minister is not to make the proposed declaration unless the Minister has considered all comments on the proposal given under subsection (2).

SECT 10 10 Approved management programs

(1)


Subject to subsection (1B) and to any regulations referred to in subsection (2), the Minister may, by instrument under the Minister's hand published in the Gazette, declare a management program that is being, is proposed to be, or has been, carried out, in Australia, in an external Territory or in another country to be an approved management program for the purposes of this Act.

(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.

(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.



(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.

(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.



(2D)

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

(3)

The Minister may make a declaration about a management program even though he or she considers that the program should be an approved management program only:



(a)

during a particular period; or

(b)

while certain circumstances exist; or



(c)

while a certain condition is complied with;

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

(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.

SECT 10A 10A Controlled specimens

(1)

In this section:



ordinary Australian specimen means a specimen that is, or is derived from, a native Australian animal or a native Australian plant other than:

(a)


a live native Australian animal of a species included in the sub-phylum vertebrata, not being a fish; or

(b)


a specimen specified in Part I of Schedule 1; or

(c)


a specimen specified in Part I of Schedule 3.

ordinary specimen means a specimen other than:

(a)


a live animal; or

(b)


a specimen specified in Part I of Schedule 1; or

(c)


a specimen specified in Part I of Schedule 3.

(2)


Where the Minister decides that it would be consistent with the object of this Act for ordinary Australian specimens of a particular kind to be taken from a particular place in Australia or an external Territory otherwise than in accordance with an approved management program and exported, he or she may, by signed instrument published in the Gazette, declare those specimens so taken to be controlled specimens for the purposes of this Act.

(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.

(3)


Where the Minister decides that it would be consistent with the object of this Act for ordinary specimens of a particular kind to be taken in a particular place in a foreign country otherwise than in accordance with an approved management program and imported, he or she may, by signed instrument published in the Gazette, declare those specimens so taken to be controlled specimens for the purposes of this Act.

(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).

(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.

(4)


The Minister may make a decision under subsection (2) or (3) about specimens of a particular kind even though the decision is:

(a)


limited to specimens taken during a particular period; or

(b)


limited to a particular number or other quantity of the specimens; or

(c)


subject to the existence of particular circumstances; or

(d)


subject to compliance with a particular condition;

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

(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.

(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).



(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.

(6)

The Designated Authority must maintain a register containing descriptions of the controlled specimens.



(7)

The register is to set out opposite to each description of controlled specimens the date of the declaration of the specimens.

SECT 11 11 Approved institutions

(1)


Subject to any regulations referred to in subsection (2), the Designated Authority may, by instrument under the Designated Authority's hand published in the Gazette, declare an organization in Australia, in an external Territory or in another country, being an organization that is engaged in activities relating to live animals or live plants, to be an approved institution in relation to a class, or classes, of specimens specified in the instrument.

(2)


The regulations:

(a)


may provide that the Designated Authority shall not declare an organization referred to in subsection (1) to be an approved institution in relation to any class, a particular class, or particular classes, of specimens unless the Designated Authority is satisfied of certain matters in relation to the organization; or

(b)


may prescribe matters that are to be taken into account by the Designated Authority when determining whether the Designated Authority will declare an organization referred to in subsection (1) to be an approved institution in relation to any class, a particular class, or particular classes, of specimens.

(3)


An organization referred to in subsection (1) may apply, in writing, to the Designated Authority to be declared to be an approved institution in relation to a class, or classes, of specimens specified in the application.

SECT 12 12 Approved zoological organizations

(1)

Subject to any regulations referred to in subsection (2), the Designated Authority may, by instrument under the Designated Authority's hand published in the Gazette, declare a zoological organization in Australia, in an external Territory or in another country to be an approved zoological organization in relation to a class, or classes, of specimens specified in the instrument.



(2)

The regulations:

(a)

may provide that the Designated Authority shall not declare a zoological organization to be an approved zoological organization in relation to any class, a particular class, or particular classes, of specimens unless the Designated Authority is satisfied of certain matters in relation to the organization; or



(b)

may prescribe matters that are to be taken into account by the Designated Authority when determining whether the Designated Authority will declare a zoological organization to be an approved zoological organization in relation to any class, a particular class, or particular classes, of specimens.

(3)

A zoological organization may apply, in writing, to the Designated Authority to be declared to be an approved zoological organization in relation to a class, or classes, of specimens specified in the application.



SECT 13 13 Inter zoological gardens transfer

(1)


For the purposes of this Act, the export or the import of an animal specimen shall be taken to be an inter zoological gardens transfer if, and only if:

(a)


the exporter or the sender, as the case may be, is an approved zoological organization, or a relevant approved institution, in relation to a class of specimens that includes that specimen; and

(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

(c)


in the case of a specimen, other than a specimen that is, or is derived from, a live animal that was bred in captivity—the specimen was not purchased or otherwise obtained for the purposes of trade; and

(d)


the recipient is:

(i)


where the exporter or the sender is an approved zoological organisation, either:

(A) an approved zoological organisation; or


(B) a relevant approved institution; or

(ii)


where the exporter or the sender is a relevant approved institution—an approved zoological organisation;

in relation to a class of specimens that includes that specimen; 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.

(2)

In this section, relevant approved institution means an approved institution that is also a prescribed scientific organisation.



SECT 14 14 Breeding in captivity For the purposes of this Act, a live animal of a particular kind shall be taken to have been bred in captivity if, and only if, it was bred in circumstances declared by the regulations to be circumstances the breeding in which of:

(a)


any live animal;

(b)


any live animal of that kind; or

(c)


any live animal included in a class of live animals that includes live animals of that kind;

would constitute breeding in captivity.

SECT 15 15 Artificial propagation For the purposes of this Act, a live plant of a particular kind shall be taken to have been artificially propagated if, and only if, it was propagated in circumstances declared by the regulations to be circumstances the propagation in which of:

(a)


any live plant;

(b)


any live plant of that kind; or

(c)


any live plant included in a class of live plants that includes live plants of that kind;

would constitute artificial propagation.

SECT 16 16 Export of household pets--native Australian animals

(1)


The export of a live native Australian animal from Australia or from an external Territory is an export of a household pet in accordance with this section if:

(a)


the animal is an animal of a species specified in Schedule 7, other than the species Melopsittacus undulatus (common name budgerigar);

(b)


the exporter kept the animal as a household pet immediately before the export;

(c)


the exporter has been ordinarily resident in Australia or that Territory, as the case may be, for not less than 4 years immediately preceding the export;

(d)


the exporter is leaving Australia or that Territory, as the case may be, with the intention of taking up permanent residence in another country;

(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.

(2)


The export of a live native Australian animal of the species Melopsittacus undulatus (common name budgerigar) from Australia or from an external Territory is an export of a household pet in accordance with this section if:

(a)


the animal was bred in captivity;

(b)


the exporter has owned and kept the animal as a household pet;

(c)


the exporter is leaving Australia or that Territory, as the case may be, with the intention of taking up permanent residence in another country; and

(d)


it is not proposed to export (whether by virtue of this subsection or otherwise) any animal of that species that has been kept as a household pet by the exporter or the members of the household of the exporter other than that animal or that animal and one other animal of that species.

(3)


The export before 1 May 1987 of a live native Australian animal from Australia or from an external Territory is an export of a household pet in accordance with this section if:

(a)


the animal is an animal of a species specified in Schedule 7;

(b)


the exporter has owned and kept the animal as a household pet:

(i)


for not less than 2 years immediately preceding the export; and

(ii)


since a day on or before 1 May 1984;

(c)


the exporter has been ordinarily resident in Australia or that Territory, as the case may be:

(i)


for not less than 3 years immediately preceding the export; and

(ii)


since a day on or before 1 May 1984; and

(d)


it is not proposed to export (whether by virtue of this subsection or otherwise) any animal of that species that has been kept as a household pet by the exporter or the members of the household of the exporter other than that animal or that animal and one other animal of that species.

SECT 16A 16A Export of household pets--other animals The export of a live animal, other than a native Australian animal, from Australia or from an external Territory is an export of a household pet in accordance with this section if:

(a)

the exporter has owned and kept the animal as a household pet; and



(b)

the exporter is leaving Australia or that Territory, as the case may be, with the intention of taking up residence in another country.

SECT 17 17 Designated Authority There shall be a Designated Authority for the purposes of this Act.

SECT 18 18 Constitution of Designated Authority

(1)

The Secretary to the Department is the Designated Authority until:



(a)

an appointment is made under subsection (2); or

(b)

the Secretary resigns the office of Designated Authority under subsection (5).



(2)

Subject to subsection (1), the Designated Authority:

(a)

shall be a person appointed by the Minister;



(b)

shall be appointed on a part-time basis;

(c)

holds office at the pleasure of the Minister; and



(d)

may be a person who is engaged under the Public Service Act 1999.

(3)

A person shall not be appointed to be the Designated Authority unless the person has such qualifications and experience in connection with the conservation or management of wild animals and wild plants as, in the opinion of the Minister, render the person suitable for the appointment.



(4)

The Designated Authority 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.

(5)

The Designated Authority may resign his or her office by writing signed by the Designated Authority and delivered to the Minister.



SECT 19 19 Remuneration and allowances of Designated Authority

(1)


The Designated Authority shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, the Designated Authority shall be paid such remuneration as is prescribed.

(2)


The Designated Authority shall be paid such allowances as are prescribed.

(3)


This section has effect subject to the Remuneration Tribunal Act 1973.

SECT 20 20 Acting Designated Authority

(1)

The Minister may appoint a person to act as the Designated Authority:



(a)

during a vacancy in the office of Designated Authority; or

(b)

during any period, or during all periods, when the Designated Authority is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office;



but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

(2)


An appointment of a person under subsection (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

(3)


The Minister may:

(a)


determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as the Designated Authority; and

(b)


terminate such an appointment at any time.

(4)


Where a person is acting as Designated Authority in accordance with paragraph (1)(b) and the office of Designated Authority becomes vacant while that person is so acting, then, subject to subsection (2), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the date on which the vacancy occurred expires, whichever first happens.

(5)


The appointment of a person to act as the Designated Authority ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

(6)


Where a person is acting as Designated Authority, the person has and may exercise all the powers, and may perform all the functions, of the Designated Authority under this Act.

(7)


The validity of anything done by a person purporting to act under subsection (1) shall not be called in question on the ground that the occasion for the appointment or acting had not arisen, that there is a defect or irregularity in or in connection with the appointment, that the appointment had ceased to have effect or that the occasion for the person to act had not arisen or had ceased.

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