Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001
Div 3Exports of regulated native specimens
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For the purposes of this Act, a regulated native specimen is a specimen that:
(a) is, or is derived from, a native animal or a native plant; and
(b) is not included in the list referred to in section 303DB.
303DB Listing of exempt native specimens
(1) The Minister must, by instrument published in the Gazette, establish a list of exempt native specimens.
(2) For each specimen included in the list, there is to be a notation that states whether the inclusion of the specimen in the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.
(3) A restriction or condition mentioned in subsection (2) may:
(a) consist of a quantitative limit in relation to the export of the specimen; or
(b) relate to the circumstances of the export of the specimen; or
(c) relate to the source of the specimen; or
(d) relate to the circumstances in which the specimen was taken or, if the specimen is derived from another specimen that was taken, the circumstances in which the other specimen was taken; or
(e) relate to an expiry date for the inclusion of the specimen on the list.
(4) Subsection (3) does not limit subsection (2).
(5) The list, as first established, must:
(a) contain the specimens referred to in Part I of Schedule 4 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section; and
(b) reflect the restrictions and conditions that are applicable to the inclusion of those specimens in that Part of that Schedule.
(6) The list must not include a specimen that belongs to an eligible listed threatened species unless:
(a) the Minister is satisfied that the export of the specimen will not:
(i) adversely affect the conservation status of the species concerned; and
(ii) be inconsistent with any recovery plan or wildlife conservation plan for that species; and
(b) the inclusion of the specimen on the list is subject to a restriction or condition to the effect that:
(i) the specimen must be, or be derived from, a plant that was artificially propagated (section 527C); and
(ii) the specimen was propagated in an operation that has derived its stock in a way that did not breach a law of the Commonwealth, a State or a Territory.
(7) A copy of an instrument under subsection (1) is to be made available for inspection on the Internet.
303DC Minister may amend list
(1) The Minister may, by instrument published in the Gazette, amend the list referred to in section 303DB by:
(a) including items in the list; or
(b) deleting items from the list; or
(c) imposing a condition or restriction to which the inclusion of a specimen in the list is subject; or
(d) varying or revoking a condition or restriction to which the inclusion of a specimen in the list is subject; or
(e) correcting an inaccuracy or updating the name of a species.
(1A) In deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery, the Minister must rely primarily on the outcomes of any assessment in relation to the fishery carried out for the purposes of Division 1 or 2 of Part 10.
(1B) Subsection (1A) does not apply to an amendment mentioned in paragraph (1)(e).
(1C) Subsection (1A) does not limit the matters that may be taken into account in deciding whether to amend the list referred to in section 303DB to include a specimen derived from a commercial fishery.
(1D) In this section:
fishery has the same meaning as in section 303FN.
(2) For the purposes of paragraph (1)(e), correcting an inaccuracy includes ensuring that the list complies with subsection 303DB(5).
(3) Before amending the list referred to in section 303DB as mentioned in paragraph (1)(a), (b), (c) or (d) of this section, the Minister:
(a) must consult such other Minister or Ministers as the Minister considers appropriate; and
(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and
(c) may consult such other persons and organisations as the Minister considers appropriate.
(4) An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(e)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) A copy of an instrument under subsection (1) is to be made available for inspection on the Internet.
Subdivision B—Offence and permit system
303DD Exports of regulated native specimens
(a) the person exports a specimen; and
(b) the specimen is a regulated native specimen.
Exemption—permit
(2) Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303DG, 303GB or 303GC and is in force.
Exemption—accredited wildlife trade management plan
(3) Subsection (1) does not apply if:
(a) the export of the specimen would be an export in accordance with an accredited wildlife trade management plan (section 303FP); and
(b) the specimen is not a live native mammal, a live native reptile, a live native amphibian or a live native bird; and
(ba) either:
(i) the specimen is not a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of this subparagraph; or
(ii) the export is an export from an approved aquaculture program in accordance with section 303FM; and
(c) the specimen is not a CITES specimen; and
(d) the specimen does not belong to an eligible listed threatened species.
Exemption—exchange of scientific specimens
(4) Subsection (1) does not apply if the export of the specimen is an export that, in accordance with a determination made by the Minister under the regulations, is taken to be part of a registered, non-commercial exchange of scientific specimens between scientific organisations.
Note: The defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal Code).
303DE Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303DG.
303DF Further information
(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303DG Minister may issue permits
(1) The Minister may, on application made by a person under section 303DE, issue a permit to the person. This subsection has effect subject to subsections (3), (3A) and (4).
(2) A permit authorises its holder to take the action or actions specified in the permit without breaching section 303DD.
(3) The Minister must not issue a permit authorising the export of a live native mammal, a live native reptile, a live native amphibian or a live native bird unless the Minister is satisfied that the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA).
(3A) The Minister must not issue a permit authorising the export of a live terrestrial invertebrate, or a live freshwater fish, prescribed by the regulations for the purposes of paragraph 303DD(3)(ba) unless the Minister is satisfied that:
(a) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(b) the proposed export would be an export from an approved aquaculture program in accordance with section 303FM.
(4) The Minister must not issue a permit unless the Minister is satisfied that:
(a) the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:
(i) the survival of any taxon to which the specimen belongs; or
(ii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(b) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and
(c) the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(d) if the specimen belongs to an eligible listed threatened species—the export of the specimen is covered by subsection (7) or (8), and the export would not be inconsistent with any recovery plan for that species; and
(e) if the specimen does not belong to an eligible listed threatened species:
(i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(ii) the proposed export would be an eligible commercial purpose export (within the meaning of section 303FJ).
(5) Subsection (4) does not apply in relation to a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be.
(6) The Minister must not issue a permit to export from Australia or an external Territory a specimen (other than a live animal) that has been imported into Australia or that Territory, as the case may be, unless the Minister is satisfied that the specimen was lawfully imported (section 303GY).
Eligible listed threatened species
(7) This subsection covers the export of a specimen if:
(a) the export of the specimen would be an export from an approved captive breeding program in accordance with section 303FK; or
(b) the export of the specimen would be an export from an approved artificial propagation program in accordance with section 303FL; or
(c) the export of the specimen would be an export from an approved aquaculture program in accordance with section 303FM;
and the export of the specimen will not adversely affect the conservation status of the species concerned.
Note: See also subsection (3).
(8) This subsection covers the export of a specimen if:
(a) the export of the specimen would be an export for the purposes of research in accordance with section 303FC; or
(b) the export of the specimen would be an export for the purposes of education in accordance with section 303FD; or
(c) the export of the specimen would be an export for the purposes of exhibition in accordance with section 303FE; or
(d) the export of the specimen would be an export for the purposes of conservation breeding or propagation in accordance with section 303FF.
Section has effect subject to section 303GA
(9) This section has effect subject to section 303GA.
303DH Time limit for making permit decision
If an application for a permit is made under section 303DE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(b) if a request for further information in relation to the application is made under section 303DF—the day on which the applicant complies with the request;
303DI Duration of permits
A permit under section 303DG:
(i) a period of 3 years beginning on the date on which it is issued; or
303DJ Register of applications and decisions
(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:
(a) prescribed particulars of applications made under section 303DE after the establishment of the register; and
(b) prescribed particulars of decisions made by the Minister under section 303DG after the establishment of the register.