I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Ordinance under the Australian Antarctic Territory Act 1954.
Dated this sixth
day of August 1980.
ZELMAN COWEN
Governor-General
By His Excellency’s Command,
DAVID THOMSON
Minister of State for Science and Environment
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ENDANGERED SPECIES ORDINANCE 1980
Short title
This Ordinance may be cited as the Endangered Species Ordinance 1980.*
Commencement
This Ordinance shall come into operation on a date to be fixed by the Minister by notice published in the Gazette.
Interpretation
(1) In this Ordinance, unless the contrary intention appears –
“Agreement” means the Agreement between the Government of Australia and the Government of Japan for the protection of migratory birds and birds in danger of extinction and their environment done at Tokyo in Japan on 6 February 1974 a copy of which in the English language is set out in Schedule 1;
“Appendix” means an Appendix to the Convention
“designated authority” means the Minister of State for the time being administering the National Parks and Wildlife Act 1975;
“Collector” means a person appointed as a collector under section 12;
“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, as amended and in force on 28 June 1979, a copy of which in the English language is set out in the Schedule.
(2) Unless the contrary intention appears, words and expressions used in a provision of this Ordinance, other than sections 8, 9, 10 and 11, have the same meanings respectively as in the Convention.
(3) Unless the contrary intention appears, words and expressions used in sections 8, 9, 10 and 11 of this Ordinance have the same meanings respectively as in the Agreement.
(4) A reference to the relevant authority of a country shall be read as a reference –
(a) where the country is a party to the Convention – to a Management Authority of that country; or
(b) where the country is not a party to the Convention – to the competent authorities of the country within the meaning of Article X of the Convention.
(5) In sections 8, 9, 10 and 11 and in regulations made for the purposes of sub-sections 8(1), 9(1) 10(1) and 11(1), unless the contrary intention appears –
“animal” means any member, alive or dead, of the animal kingdom (other than man), and includes –
(a) eggs or parts of eggs; and
(b) the skin, feathers, horns, shell or any part of an animal;
“plant” means any member, alive or dead, of the plant kingdom or of the fungus kingdom, and includes seeds and parts of plants.
(6) A reference to a permit or certificate granted by the relevant authority of a country, other than a country that is a party to the Convention, shall be read as a reference to comparable documentation within the meaning of Article X of the Convention issued by the relevant authority.
(7) A reference in paragraph 4 (2) (a) or (b), 4 (3) (a), 5 (2) (a), 5 (3) (a), 6 (2) (a), 6 (3) (a), 8 (2) (a), or (b) or 9 (2) (a) to the designated authority shall be read as including a reference to a person authorized in writing by the designated authority for the purposes of that paragraph to exercise the powers of the designated authority under that paragraph.
Importation of a specimen of a species in Appendix I or II
(1) The importation into the Territory, not being an importation by way of introduction from the sea, of a specimen of a species included in Appendix I or Appendix II is prohibited unless the importer holds an import permit granted by the Minister in respect of the specimen.
(2) The Minister shall not grant an import permit under sub-section (1) in respect of a specimen of a species included in Appendix I unless –
(a) the designated authority advises that –
(i) the importation of the specimen will be for purposes that are not detrimental to the survival of that species; and
(ii) having regard to those purposes, the specimen, if imported, would not be likely to affect adversely the survival of any other species included in Appendix I or Appendix II;
(b) where the specimen is a living specimen, the designated authority is satisfied that the proposed recipient of the specimen is suitably equipped to house and care for the specimen; and
(c) the Minister is satisfied –
(i) that the specimen is not to be used for primarily commercial purposes; and
(ii) that an export permit or re-export certificate in respect of the specimen has been granted by the relevant authority of the country from which the specimen has been, or is proposed to be, exported or re-exported to the Territory.
(3) The Minister shall not grant an import permit under sub-section (1) in respect of a specimen of a species included in Appendix II unless –
(a) having regard to the purposes for which it is intended to import the specimen, the designated authority advises that the specimen, if imported, would not be likely to affect adversely the survival of any other species included in Appendix I or Appendix II; and
(b) the Minister is satisfied that an export permit or re-export certificate in respect of the specimen has been granted by the relevant authority of the country from which the specimen has been, or is proposed to be, exported or re-exported.
(4) An application for an import permit under sub-section (1) shall be made in writing and lodged with the Minister.
Introduction from the sea of a specimen of a species in Appendix I or II
(1) The importation into the Territory by way of introduction from the sea of a specimen of a species included in Appendix I or Appendix II is prohibited unless the importer holds a certificate granted by the Minister permitting the importation of the specimen.
(2) The Minister shall not grant a certificate under sub-section (1) in respect of a specimen of a species included in Appendix I unless –
(a) the designated authority advises that –
(i) the importation of the specimen will not be detrimental to the survival of that species; and
(ii) the specimen, if imported, would not be likely to affect adversely the survival of any other species included in Appendix I or Appendix II; and
(b) the Minister is satisfied –
(i) where the specimen is a living specimen, that the proposed recipient is suitably equipped to house and care for the specimen; and
(ii) that the specimen is not to be used for primarily commercial purposes.
(3) The Minister shall not grant a certificate under sub-section (1) in respect of a specimen of a species included in Appendix II unless –
(a) the designated authority advises that the importation of the specimen will not be detrimental to the survival of that species; and
(b) where the specimen is a living specimen, the Minister is satisfied that the specimen will be handled so that the risk of injury, damage to health or cruel treatment is minimized.
(4) An application for a certificate under sub-section (1) shall be made in writing and lodged with the Minister.
Exportation of a specimen of a species in Appendix I or II
(1) The exportation from the Territory of a specimen of a species included in Appendix I or Appendix II is prohibited unless the exporter holds an export permit granted by the Minister in respect of the specimen.
(2) The Minister shall not grant an export permit under sub-section (1) in respect of a specimen of a species included in Appendix I unless –
(a) the designated authority advises that the exportation of the specimen will not be detrimental to the survival of that species; and
(b) the Minister is satisfied –
(i) that the specimen was not obtained in contravention of any law of the Commonwealth or a State or Territory relating to the protection of fauna or flora;
(ii) where the specimen is a living specimen, that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized; and
(iii) that an import permit in respect of the specimen has been granted by the relevant authority of the country to which the specimen is proposed to be exported.
(3) The Minister shall not grant an export permit under sub-section (1) in respect of a specimen of a species included in Appendix II unless –
(a) the designated authority advises that the exportation of the specimen will not be detrimental to the survival of that species; and
(b) the Minister is satisfied –
(i) that the specimen was not obtained in contravention of any law of the Commonwealth or a State or Territory relating to the protection of fauna or flora; and
(ii) where the specimen is a living specimen, that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized.
(4) An application for an export permit under sub-section (1) in respect of a specimen of a species included in Appendix I or Appendix II shall be made in writing and lodged with the Minister.
Re-exportation of a specimen of a species in Appendix I or II
(1) The re-exportation from the Territory of a specimen of a species included in Appendix I or Appendix II is prohibited unless the exporter produces to the Collector a re-export certificate granted by the Minister in respect of the specimen.
(2) The Minister shall not grant a re-export certificate under sub-section (1) in respect of a specimen of a species included in Appendix I unless he is satisfied –
(a) where the specimen was imported into the Territory after the commencement of this Ordinance, that the specimen was so imported in accordance with the provisions of the Convention; and
(b) where the specimen is a living specimen –
(i) that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized; and
(ii) that an import permit in respect of the specimen has been granted by the relevant authority of the country to which the specimen is proposed to be re-exported.
(3) The Minister shall not grant a re-export certificate under sub-section (1) in respect of a specimen of a species included in Appendix II unless he is satisfied –
(a) where the specimen was imported into the Territory after the commencement of this Ordinance, that the specimen was so imported in accordance with the provisions of the Convention; and
(b) where the specimen is a living specimen, that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized.
(4) An application for a re-export certificate under sub-section (1) shall be made in writing and lodged with the Minister.
Importation of a prescribed animal or plant
(1) The importation into the Territory, not being an importation by way of introduction from the sea, of a prescribed animal or plant, is prohibited unless the importer holds an import permit granted by the Minister in respect of that animal or plant.
(2) The Minister shall not grant an import permit under sub-section (1) in respect of a prescribed animal or plant unless –
(a) the designated authority advises that –
(i) the importation of the animal or plant will be for purposes that are not detrimental to the survival of that species; and
(ii) having regard to those purposes, the animal or plant, if imported, would not be likely to affect adversely the survival of any other species;
(b) where the animal or plant is a living animal or plant, the designated authority is satisfied that the proposed recipient of the animal or plant is suitably equipped to house and care for the animal or plant; and
(c) the Minister is satisfied that exportation or re-exportation of an animal or plant would not contravene the law of the country from which the animal or plant has been, or is proposed to be, exported or re-exported to the Territory.
(3) The Minister shall not grant an import permit under sub-section (1) in respect of a prescribed animal or plant unless –
(a) having regard to the purposes for which it is intended to import the animal or plant, the designated authority advises that the animal or plant, if imported, would not be likely to affect adversely the survival of any other species; and
(b) the Minister is satisfied that exportation or re-exportation is not contrary to the law of the country from which the animal or plant has been, or is proposed to be, exported or re-exported.
(4) An application for an import permit under sub-section (1) shall be made in writing and lodged with the Minister.
Introduction from the sea of a prescribed animal or plant
(1) The importation into the Territory by way of introduction from the sea of a prescribed animal or plant is prohibited unless the importer holds a certificate granted by the Minister permitting the importation of the animal or plant.
(2) The Minister shall not grant a certificate under sub-section (1) in respect of an animal or plant unless –
(a) the designated authority advises that the importation of the animal or plant will not be detrimental to the survival of that species; and
(b) where the animal or plant is a living animal or plant, the Minister is satisfied that the animal or plant will be handled so that the risk of injury, damage to health or cruel treatment is minimized.
(3) An application for a certificate under sub-section (1) shall be made in writing and lodged with the Minister.
Exportation of a prescribed animal or plant
(1) The exportation from the Territory of a prescribed animal or plant is prohibited unless the exporter holds an export permit granted by the Minister in respect of that animal or plant.
(2) The Minister shall not grant an export permit under sub-section (1) in respect of an animal or plant unless –
(a) the exportation of the animal or plant will not be detrimental to the survival of that species;
(b) that the animal or plant was not obtained in contravention of any law of the Commonwealth or a State or Territory relating to the protection of fauna or flora; and
(c) where the animal or plant is a living animal or plant, that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized.
(3) An application for an export permit under sub-section (1) shall be made in writing and lodged with the Minister.
Re-exportation of a prescribed animal or plant
(1) The re-exportation from the Territory of a prescribed animal or plant is prohibited unless the exporter produces to the Collector a re-export certificate granted by the Minister in respect of a prescribed animal or plant.
(2) The Minister shall not grant a re-export certificate under sub-section (1) in respect of an animal or a plant unless he is satisfied –
(a) that the animal or plant was not imported in contravention of the provisions of this Ordinance; and
(b) where the animal or plant is a living animal or plant, that it will be prepared and shipped so that the risk of injury, damage to health or cruel treatment is minimized.
(3) An application for a re-export certificate under sub-section (1) shall be made in writing and lodged with the Minister.
Appointment of Collector
The Minister may, by instrument in writing, appoint a person to be a Collector.
Artificially propagated plants
(1) A specimen of a plant species included in Appendix I that has been artificially propagated for commercial purposes shall be deemed, for the purposes of this Ordinance, to be a specimen of a species included in Appendix II and not a specimen of a species included in Appendix I.
(2) A certificate given by the relevant authority of a country from which a specimen of a plant species included in Appendix I or Appendix II is exported or re-exported to the effect that the relevant authority is satisfied that –
(a) the specimen was artificially propagated;
(b) the specimen is a part of a specimen of a plant species that was artificially propagated; or
(c) the specimen is derived from a specimen of a plant species that was artificially propagated,
shall be taken, for the purposes of sub-section (4)(1), to be an import permit granted by the Minister in respect of the specimen.
(3) A certificate given by the Minister in respect of a specimen of a plant species included in Appendix I or Appendix II to the effect that he is satisfied that –
(a) the specimen was artificially propagated;
(b) the specimen is a part of a specimen of a plant species that was artificially propagated; or
(c) the specimen is derived from a specimen of a plant species that was artificially propagated,
shall be taken –
(d) for the purposes of sub-section 6(1) – to be an export permit granted by the Minister in respect of the specimen; and
(e) for the purposes of sub-section 7(1) – to be a re-export certificate granted by the Minister in respect of the specimen.
(4) An application for a certificate referred to in sub-section (3) shall be made in writing and lodged with the Minister.
Personal and household effects
(1) Sections 4 and 5 do not apply to or in relation to the importation into the Territory by a person of a specimen of a species included in Appendix I or Appendix II, being a specimen that is included in the personal or household effects of that person.
(2) Sections 6 and 7 do not apply to or in relation to the exportation or re-exportation from the Territory by a person of a specimen of a species that is included in the personal or household effects of that person.
Exemptions
Sections 4, 5, 6 and 7 do not apply to or in relation to the non-commercial loan, donation or exchange in accordance with paragraph 6 of Article VII of the Convention of herbarium specimens, other preserved, dried or embedded museum specimens or live plant material.
Waiver
(1) Notwithstanding section 4, 5, 6 or 7, the Minister may authorize in writing the importation into, or exportation or re-exportation from, the Territory of any specimens that is part of a travelling zoo, circus, menagerie, plant exhibition or other travelling exhibition where –
(a) full particulars of the specimen are furnished to the Minister;
(b) the specimen –
(i) was acquired before the date on which the provisions of the Convention applied to the specimen;
(ii) is a specimen of an animal species that was bred in captivity or part of such an animal; or
(iii) is a specimen of a plant species that was artificially propagated or part of such a plant; and
(c) if the specimen is a living specimen, the Minister is satisfied that the specimen will be transported and cared for so that the risk of injury, damage to health or cruel treatment is minimized.
(2) An application for an authority under sub-section (1) shall be made in writing and lodged with the Minister.
Ordinance not to affect other law
The provisions of this Ordinance are in addition to, and do not affect the operation of, the provisions of any law relating to quarantine or any other law in the Territory.
Offences
A person who does anything that is prohibited by this Ordinance is guilty of an offence against this Ordinance.
Penalties
A person who is guilty of an offence against this Ordinance is punishable upon conviction –
(a) in the case of body corporate – by a fine not exceeding $2,000; and
(b) in any other case – by a fine not exceeding $1,000.
Delegation
(1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him, delegate to a person any of his powers under this Ordinance other than this power of delegation and the power to suspend or cancel a permit.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Ordinance, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
Forfeiture
A specimen of a species included in Appendix I, Appendix II or a prescribed animal or plant with respect to which an offence has been committed under this Ordinance is forfeited to the Commonwealth.
Regulations
The Minister may make regulations, not inconsistent with this Ordinance, prescribing all matters required or permitted by this Ordinance to be prescribed, or necessary or convenient to be prescribed for giving effect to this Ordinance, the Convention or to the Agreement.
SCHEDULE 1 Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND
THE GOVERNMENT OF JAPAN FOR THE PROTECTION OF
MIGRATORY BIRDS AND BIRDS IN DANGER OF
EXTINCTION AND THEIR ENVIRONMENT
The Government of Australia and the Government of Japan,
Considering that birds constitute an important element in the natural environment and play an essential role in enriching the natural environment and that this role may be enhanced by proper management thereof,
Recognising the special international concern, as expressed, for example, at the United Nations Conference on the Human Environment, for the protection of migratory birds and birds in danger of extinction,
Noting the existence of bilateral and multilateral agreements for the protection of migratory birds and birds in danger of extinction,
Considering that many species of birds migrate between Australia and Japan and live seasonally in the respective countries and that there are certain species of birds which are in danger of extinction and also that co-operation between the two Governments is essential for the conservation of these birds, and
Desiring to co-operate in taking measures for the management and protection of migratory birds and birds in danger of extinction and also for the management and protection of their environments,
Have agreed as follows:
Article I
In this Agreement, the term "migratory birds" means:
(a) the species of birds for which there is reliable evidence of migration between the two countries from the recovery of bands or other markers; and
(b) the species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries (excepting those whose non-migratory nature is biologically evident). The identification of these species and subspecies shall be based upon specimens, photographs or other reliable evidence.
(a) The list of the species defined as migratory birds in accordance with paragraph 1 of this Article is contained in the Annex to this Agreement.
(b) The competent authorities of the two Governments shall review from time to time the Annex and, if necessary, make recommendations to their respective Governments to amend it.
(c) The Annex shall be considered amended three months after the date upon which the two Governments confirm, by an exchange of diplomatic notes, their respective acceptance of such recommendations.
Article II
1. Each Government shall prohibit the taking of migratory birds or their eggs. However, exceptions to the prohibition of taking may be permitted in accordance with the laws and regulations in force in each country in the following cases:
(a) for scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Agreement;
(b) for the purpose of protecting persons and property;