(4) For the purposes of subsection (3), a person is taken to have released an animal from captivity if:
(a) that animal has escaped from captivity; and
(b) either:
(i) the person allowed the animal to escape; or
(ii) the person failed to take all reasonable measures to prevent the animal from escaping.
(4A) For the purposes of subsection (3), a person is taken to have allowed a plant to escape if:
(a) the plant has grown or propagated in the wild; and
(b) either:
(i) the person allowed the plant to escape; or
(ii) the person failed to take all reasonable measures to prevent the plant from growing or propagating in the wild.
(5) In subsections (2) and (3), strict liability applies to the circumstance that the person was given an authority under section 303GG.
Note: For strict liability, see section 6.1 of the Criminal Code.
303GG Authorities under permits
(1) This section applies to a permit issued under this Part.
(2) Except as provided in this section, a permit does not authorise the taking of any action by a person for or on behalf of the holder of the permit.
(3) Subject to subsection (4), the holder of a permit may give a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.
(4) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so; and
(b) the authority is given in accordance with any requirements set out in the condition.
(5) A permit is, for the purposes of this Act, taken to authorise the taking of a particular action by a person if the taking of that action by the person is authorised by an authority given by the holder of the permit.
(6) The giving of an authority does not prevent the taking of any action by the holder of the permit.
(7) A person who gives an authority must give to the Minister written notice of it within 14 days after giving the authority.
303GH Transfer of permits
(1) This section applies to a permit issued under this Part.
(2) On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
(3) In deciding whether to transfer the permit to another person, the Minister must consider whether the transferee is a suitable person to hold the permit, having regard to the matters set out in the regulations.
303GI Suspension or cancellation of permits
(1) This section applies to a permit issued under this Part.
(2) The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
303GJ Review of decisions
(1) Subject to subsection (2), an application may be made to the Administrative Review Tribunal for review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit; or
(f) to issue or refuse a certificate under subsection 303CC(5); or
(g) of the Secretary under a determination in force under section 303EU; or
(h) to make or refuse a declaration under section 303FN, 303FO or 303FP; or
(i) to vary or revoke a declaration under section 303FN, 303FO or 303FP.
(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
(3) In this section:
permit means a permit under this Part.
303GK Permit to be produced
Export permit
(1) For the purposes of this Part, if the holder of a permit to export a specimen exports that specimen, he or she is not to be taken to have exported that specimen in accordance with that permit unless, before exporting the specimen, he or she:
(a) produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the export of the specimen; or
(b) received written notice from the Secretary authorising the export of the specimen without the production of the permit.
(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:
(a) is satisfied that the production of the permit is impracticable; and
(b) endorses a copy of the permit to show that the notice is being given; and
(c) makes that copy available to an authorised officer doing duty in relation to the export of the specimen.
Import permit
(3) For the purposes of this Part, if the holder of a permit to import a specimen imports that specimen, he or she is not to be taken to have imported that specimen in accordance with that permit unless, before or within a reasonable time after importing the specimen, he or she produced the permit, or caused the permit to be produced, to an authorised officer doing duty in relation to the import of the specimen.
Authorities under section 303GG
(4) If a person is given an authority under section 303GG by the holder of a permit, this section applies to the person in a corresponding way to the way in which it applies to the holder of the permit.
Electronic communication
(5) Nothing in this section prevents the holder of a permit producing a permit, or causing a permit to be produced, by means of an electronic communication.
303GL Pre‑CITES certificate to be produced
Export certificate
(1) If a person exports a specimen and wishes to rely on a certificate issued under subsection 303CC(5), he or she is not entitled to rely on that certificate unless, before exporting the specimen, he or she:
(a) produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the export of the specimen; or
(b) received written notice from the Secretary authorising the export of the specimen without the production of the certificate.
(2) The Secretary must not give the notice referred to in paragraph (1)(b) unless he or she:
(a) is satisfied that the production of the certificate is impracticable; and
(b) endorses a copy of the certificate to show that the notice is being given; and
(c) makes that copy available to an authorised officer doing duty in relation to the export of the specimen.
Import certificate
(3) If a person imports a specimen and wishes to rely on a certificate referred to in paragraph 303CD(6)(b), he or she is not entitled to rely on the certificate unless, before or within a reasonable time after importing the specimen, he or she produced the certificate, or caused the certificate to be produced, to an authorised officer doing duty in relation to the import of the specimen.
Electronic communication
(4) Nothing in this section prevents a person producing a certificate, or causing a certificate to be produced, by means of an electronic communication.
303GM Fees
(1) This section applies to a permit under this Part.
(2) Such fees (if any) as are prescribed are payable in respect of the following:
(a) the issue or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
303GN Possession of illegally imported specimens
Object
(1) The object of this section is:
(a) to comply with Australia’s obligations under:
(i) the Biodiversity Convention; and
(ii) CITES; and
(b) to otherwise further the objects of this Part;
by prohibiting the possession of illegally imported specimens and the progeny of such specimens.
Note: See Article 8 of the Biodiversity Convention.
Possession of CITES specimens and unlisted regulated live specimens
(2) A person commits an offence if:
(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and
(b) the specimen is:
(i) a CITES specimen; or
(ii) a regulated live specimen that is not included in the list referred to in section 303EB;
and the person is reckless as to that fact; and
(c) the specimen does not belong to a native species.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(3) Subsection (2) does not apply if:
(a) the specimen was lawfully imported; or
(b) the specimen was not imported, but all of the specimens of which it is the progeny were lawfully imported.
Note 1: For lawfully imported, see section 303GY.
Note 2: The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (2) does not apply if the specimen was neither imported, nor the progeny of any other specimen that was imported.
Note: The defendant bears an evidential burden in relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (2) does not apply if the defendant has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).
Possession of listed regulated live specimens
(6) A person commits an offence if:
(a) the person has in the person’s possession, in the Australian jurisdiction, a specimen; and
(b) the specimen is a regulated live specimen that is included in Part 2 of the list referred to in section 303EB, and the person is reckless as to that fact; and
(c) the specimen does not belong to a native species; and
(d) either:
(i) the specimen was unlawfully imported; or
(ii) the specimen was not imported, but any of the specimens of which it is the progeny was unlawfully imported.
Penalty: Imprisonment for 5 years or 1,000 penalty units, or both.
(7) Subsection (6) does not apply if the defendant has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
Unlawfully imported
(8) For the purposes of this section, a specimen is unlawfully imported if, and only if, it was imported, but was not lawfully imported (section 303GY).
303GO Regulations relating to welfare
(1) This section applies to regulations made for the purposes of paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).
(2) The conditions specified in those regulations in relation to a live animal may:
(a) deal with the welfare of the animal:
(i) when the animal is taken; or
(ii) when the animal is being held after it has been taken; or
(iii) when the animal is being prepared or shipped; or
(iv) when the animal is under the control of the proposed recipient; and
(b) may deal with eliminating or minimising the risk of:
(i) injury to the animal; or
(ii) adverse effects on the health of the animal; or
(iii) cruel treatment of the animal.
(3) The conditions specified in those regulations in relation to a live plant may:
(a) deal with the welfare of the plant:
(i) when the plant is taken; or
(ii) when the plant is being held after it has been taken; or
(iii) when the plant is being prepared or shipped; or
(iv) when the plant is under the control of the proposed recipient; and
(b) may deal with eliminating or minimising the risk of:
(i) injury to the plant; or
(ii) adverse effects on the health of the plant.
(4) Subsections (2) and (3) do not limit paragraph 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f).
303GP Cruelty—export or import of animals
(1) A person commits an offence if:
(a) the person exports or imports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the export or import subjects the animal to cruel treatment; and
(c) the animal is a CITES specimen; and
(d) the person contravenes section 303CC or 303CD in relation to the export or import of the animal.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person exports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the export subjects the animal to cruel treatment; and
(c) the animal is a regulated native specimen; and
(d) the person contravenes section 303DD in relation to the export of the animal.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
(a) the person imports a live animal in a manner that subjects the animal to cruel treatment; and
(b) the person knows that, or is reckless as to whether, the import subjects the animal to cruel treatment; and
(c) the animal is a regulated live specimen; and
(d) the person contravenes section 303EK in relation to the import of the animal.
Penalty: Imprisonment for 2 years.
(4) This section does not limit section 303GE.
303GQ Imports of specimens contrary to the laws of a foreign country
(1) A person must not intentionally import a specimen if the person knows that:
(a) the specimen was exported from a foreign country; and
(b) at the time the specimen was exported, the export of the specimen was prohibited by a law of the foreign country that corresponds to this Part.
Penalty: Imprisonment for 5 years.
(2) A prosecution must not be instituted for an offence against this section unless a relevant CITES authority of the foreign country has requested:
(a) the investigation of the offence; or
(b) assistance in relation to a class of offences in which the offence is included.
303GR Evidence
(1) In any proceedings for an offence against this Part:
(a) any record kept in accordance with the regulations or another law of the Commonwealth or a law of a State or Territory is admissible as prima facie evidence of the facts stated in the record; and
(b) a copy of an entry in such a record, being a copy certified by the person by whom the record is kept to be a true copy of the entry, is admissible as prima facie evidence of the facts stated in the entry; and
(c) a document purporting to be a record kept in accordance with the regulations or another law of the Commonwealth, or a law of a State or Territory, or purporting to be such a certified copy as is referred to in paragraph (b), is taken, unless the contrary is established, to be such a record or certified copy, as the case may be.
(2) If, in any proceedings for an offence against this Part, a record referred to in paragraph (1)(a) is tendered as prima facie evidence of a fact stated in the record, the person alleged to have committed the offence may require the person who kept that record to be called as a witness for the prosecution in the proceedings.
303GS Evidence of examiner
(1) The Minister may, by writing, appoint appropriately qualified persons to be examiners for the purposes of this Part.
(2) Subject to subsection (4), a certificate signed by an examiner appointed under subsection (1) setting out, in relation to a substance, matter, specimen or thing, one or more of the following:
(a) that he or she is appointed as the examiner under subsection (1);
(b) when and from whom the substance, matter, specimen or thing was received;
(c) what labels or other means of identification accompanied the substance, matter, specimen or thing when it was received;
(d) what container held the substance, matter, specimen or thing when it was received;
(e) a description, including the weight, of the substance, matter, specimen or thing when it was received;
(f) the name of any method used to analyse the substance, matter, specimen or thing or any portion of it;
(g) the results of any such analysis;
(h) how the substance, matter, specimen or thing was dealt with after handling by the examiner, including details of:
(i) the quantity of the substance, matter, specimen or thing retained after analysis; and
(ii) names of any persons to whom any of the substance, matter, specimen or thing was given after analysis; and
(iii) measures taken to secure any retained quantity of the substance, matter, specimen or thing after analysis;
is admissible in any proceeding for an offence against this Part as prima facie evidence of the matters in the certificate and the correctness of the results of the analysis.
(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) is taken to be such a certificate unless the contrary is established.
(4) A certificate is not to be admitted in evidence in accordance with subsection (2) in proceedings for an offence against this Part unless:
(a) the person charged with the offence; or
(b) a solicitor who has appeared for the person in those proceedings;
has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
(5) Subject to subsection (6), if, under subsection (2), a certificate is admitted in evidence in proceedings for an offence against this Part, the person charged with the offence may require the person giving the certificate to be called as a witness for the prosecution and cross‑examined as if he or she had given evidence of the matters stated in the certificate.
(6) Subsection (5) does not entitle the person charged to require the person giving a certificate to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 4 days notice of the person’s intention to require the examiner to be so called; or
(b) the court, by order, allows the person charged to require the person giving the certificate to be so called.
(7) Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.