Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001
Div 4Imports of regulated live specimens
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For the purposes of this Act, a regulated live specimen is a specimen that:
(a) is a live animal or a live plant; and
(b) is not included in Part 1 of the list referred to in section 303EB.
303EB Listing of specimens suitable for live import
(1) The Minister must, by instrument published in the Gazette, establish a list of specimens that are taken to be suitable for live import.
(2) The list is to be divided into 2 Parts, as follows:
(a) Part 1 is to be a list of unregulated specimens;
(b) Part 2 is to be a list of allowable regulated specimens.
(3) The list may only contain specimens that are live animals or live plants.
(4) Part 1 of the list, as first established, must contain only the specimens referred to in Part I of Schedule 5 or Part I of Schedule 6 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.
(5) Part 1 of the list must not contain a CITES specimen.
(6) Part 1 of the list is taken to include a live plant the introduction of which into Australia is in accordance with the Quarantine Act 1908.
(7) For each specimen included in Part 2 of the list, there is to be a notation that states whether the inclusion of the specimen in that part of the list is subject to restrictions or conditions and, if so, the nature of those restrictions or conditions.
(8) A restriction or condition referred to in subsection (7) may:
(a) consist of a quantitative limit in relation to the import of the specimen; or
(b) relate to the circumstances of the import of the specimen; or
(c) relate to the source of the specimen; or
(d) relate to the circumstances in which the specimen was taken.
(9) Subsection (8) does not limit subsection (7).
(10) Part 2 of the list, as first established, must contain only specimens that were, at any time before the commencement of this section, the subject of an import permit granted under the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
(11) For the purposes of subsection (10), a specimen is taken to have been the subject of an import permit if, and only if, the specimen was identified in the permit at the species or sub‑species level.
(12) A copy of an instrument under subsection (1) is to be made available for inspection on the Internet.
303EC Minister may amend list
(1) The Minister may, by instrument published in the Gazette, amend the list referred to in section 303EB by:
(a) including items in a particular part of the list; or
(b) deleting items from a particular part of the list; or
(c) correcting an inaccuracy or updating the name of a species; or
(d) imposing a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject; or
(e) varying or revoking a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject.
(2) For the purposes of paragraph (1)(c), correcting an inaccuracy includes ensuring that the list complies with subsections 303EB(4) and (10).
(3) Before amending the list referred to in section 303EB as mentioned in paragraph (1)(a), (b), (d) or (e) of this section, the Minister:
(a) must consult such other Minister or Ministers as the Minister considers appropriate; and
(b) must consult such other Minister or Ministers of each State and self‑governing Territory as the Minister considers appropriate; and
(c) may consult such other persons and organisations as the Minister considers appropriate.
(4) An instrument under subsection (1) (other than an instrument mentioned in paragraph (1)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) The Minister must not amend the list referred to in section 303EB by including an item in the list, unless:
(a) the amendment is made following consideration of a relevant report under section 303ED or 303EE; or
(b) the amendment is made following consideration of a relevant review under section 303EJ.
(6) A copy of an instrument under subsection (1) is to be made available for inspection on the Internet.
Subdivision B—Assessments relating to the amendment of the list of specimens suitable for import
303ED Amendment of list on the Minister’s own initiative
(1) The Minister may formulate a proposal for the list referred to in section 303EB to be amended by including an item.
(2) The Minister must cause to be conducted an assessment of the potential impacts on the environment of the proposed amendment.
(3) The Minister must cause to be prepared a report on those impacts. The report must be prepared in accordance with section 303EF.
(4) A report under subsection (3) is to be given to the Minister.
303EE Application for amendment of list
(1) A person may, in accordance with the regulations, apply to the Minister for the list referred to in section 303EB to be amended by including an item.
(2) The Minister must not consider the application unless:
(a) an assessment is made of the potential impacts on the environment of the proposed amendment; and
(b) a report on those impacts is given to the Minister.
The report must be prepared in accordance with section 303EF.
303EF Requirement for assessments
An assessment under subsection 303ED(2) or 303EE(2) must provide for:
(a) the preparation of draft terms of reference for a report on the relevant impacts; and
(b) the publication of the draft terms of reference for public comment for a period of at least 10 business days that is specified by the Minister; and
(c) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference; and
(d) the preparation of a draft of a report on the relevant impacts; and
(e) the publication of the draft report for public comment for a period of at least 20 business days that is specified by the Minister; and
(f) the finalisation of the report, taking into account the comments (if any) received after publication of the draft report; and
(g) any other matter prescribed by the regulations.
303EG Timing of decision about proposed amendment
(1) If the Minister receives a report under section 303ED or 303EE in relation to a proposed amendment, the Minister must decide whether or not to make the proposed amendment within:
(a) 30 business days; or
(b) if the Minister, by writing, specifies a longer period—that longer period;
after the first business day after the day on which the report was received.
Notice of extension of time
(2) If the Minister specifies a longer period for the purposes of subsection (1), he or she must:
(a) if section 303EE applies—give a copy of the specification to the applicant; and
(b) publish the specification in accordance with the regulations.
303EH Requesting further information
(a) section 303EE applies; and
(b) the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to make the proposed amendment;
the Minister may request the applicant to give the Minister, within the period specified in the request, information relevant to making the decision.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303EI Notice of refusal of proposed amendment
If section 303EE applies and the Minister refuses to make the proposed amendment, the Minister must give the applicant notice of the refusal.
303EJ Reviews
If, following consideration of a relevant report under section 303ED or 303EE, the Minister has made a decision to include, or refusing to include, an item in the list referred to in section 303EB, the Minister may review that decision at any time during the period of 5 years after the decision was made.
Subdivision C—Offence and permit system
303EK Imports of regulated live specimens
(a) the person imports a specimen; and
(b) the specimen is a regulated live specimen.
Exemption—permit
(2) Subsection (1) does not apply if:
(a) the specimen is included in Part 2 of the list referred to in section 303EB; and
(b) the specimen is imported in accordance with a permit that was issued under section 303CG, 303EN, 303GB or 303GC and is in force.
Exemption—testing permit
(3) Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303GD and is in force.
Note: The defendant bears an evidential burden in relation to the matters in subsections (2) and (3) (see subsection 13.3(3) of the Criminal Code).
303EL Applications for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303EN.
303EM Further information
(1) The Minister may, within 40 business days after the application is made, request the applicant to give the Minister, within the period specified in the request, further information for the purpose of enabling the Minister to deal with the application.
(2) The Minister may refuse to consider the application until the applicant gives the Minister the information in accordance with the request.
303EN Minister may issue permits
(1) The Minister may, on application made by a person under section 303EL, issue a permit to the person. This subsection has effect subject to subsection (3).
(2) A permit authorises its holder to take the action or actions specified in the permit without breaching section 303EK.
(3) The Minister must not issue a permit unless the Minister is satisfied that:
(a) the proposed import would not be:
(i) likely to threaten the conservation status of a species or ecological community; or
(ii) likely to threaten biodiversity; and
(b) the specimen is included in Part 2 of the list referred to in section 303EB; and
(c) if any restriction or condition is applicable to the specimen under a notation in Part 2 of the list referred to in section 303EB—that restriction or condition has been, or is likely to be, complied with; and
(d) the specimen was not obtained in contravention of, and the import would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(e) if the specimen belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with.
(4) This section has effect subject to section 303GA.
303EO Time limit for making permit decision
If an application for a permit is made under section 303EL, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(b) if a request for further information in relation to the application is made under section 303EM—the day on which the applicant complies with the request;
303EP Duration of permits
A permit under section 303EN:
(i) a period of 3 years beginning on the date on which it is issued; or
303EQ Register of applications and decisions
(1) As soon as practicable after the commencement of this section, the Minister must cause to be established a register that sets out:
(a) prescribed particulars of applications made under section 303EL after the establishment of the register; and
(b) prescribed particulars of decisions made by the Minister under section 303EN after the establishment of the register.
Subdivision D—Marking of certain specimens for the purposes of identification
303ER Object
The object of this Subdivision is:
(a) to comply with Australia’s obligations under:
(i) the Biodiversity Convention; and
(ii) CITES; and
(b) otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries;
by requiring the marking of certain live specimens for the purposes of identification.
Note: See Article 8 of the Biodiversity Convention.
303ES Specimens to which Subdivision applies
This Subdivision applies to a regulated live specimen if:
(a) the specimen has been imported in accordance with:
(i) a permit under this Division; or
(ii) a permit or authority under the Wildlife Protection (Regulation of Exports and Imports) Act 1982; or
(b) the specimen is the progeny of a specimen referred to in paragraph (a).
303ET Extended meaning of marking
A reference in this Subdivision to the marking of a specimen includes a reference to the following:
(a) in the case of a live plant:
(i) the marking or labelling of a container in which the plant is kept or in which the plant is growing; and
(ii) the placement of a label or tag on the plant;
(b) in the case of a live animal:
(i) the implantation of a scannable device in the animal; and
(ii) the placement of a band on any part of the animal; and
(iii) the placement (whether by piercing or otherwise) of a tag or ring on any part of the animal; and
(iv) the marking or labelling of a container within which the animal is kept.
303EU Secretary may make determinations about marking of specimens
Determinations
(1) The Secretary may make a written determination about the marking of specified kinds of specimens for the purposes of identification.
Matters that may be covered by determination
(2) Without limiting subsection (1), a determination by the Secretary under that subsection may:
(a) require specimens to be marked; and
(b) deal with the manner in which specimens are to be marked; and
(c) deal with the times at which marking is to occur; and
(d) deal with the removal or destruction of marks; and
(e) deal with the replacement or modification of marks; and
(f) require that marking be carried out by persons approved in writing by the Secretary under that determination; and
(g) deal with the circumstances in which marks may be, or are required to be, rendered useless; and
(h) in the case of a mark that consists of a label, tag, band or device:
(i) set out specifications relating to the label, tag, band or device; and
(ii) require that any destruction or removal of the label, tag, band or device be carried out by a person approved in writing by the Secretary under that determination.
Marking of animals not to involve undue pain etc.
(3) In the case of a live animal, a determination under subsection (1) must not require marking that involves:
(a) undue pain or distress to the animal; or
(b) undue risk of the death of the animal.
Marking of plants not to involve undue risk of death
(4) In the case of a live plant, a determination under subsection (1) must not require marking that involves undue risk of the death of the plant.
Disallowable instrument
(5) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
303EV Offences
Owner to ensure specimens marked etc.
(1) If a determination under section 303EU applies to a specimen, the owner of the specimen must comply with the determination.
Person not to remove or interfere with mark etc.
(2) A person contravenes this subsection if:
(a) a specimen is marked in accordance with a determination under section 303EU; and
(c) the conduct causes the removal of the mark or interference with the mark, or renders the mark unusable.
Offence
(3) A person who contravenes subsection (1) or (2) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.
(4) Subsection (2) does not apply if the person engages in the conduct in accordance with a determination under section 303EU.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3) of the Criminal Code.
(5) In subsections (1) and (2), strict liability applies to the circumstance that a determination was made under section 303EU.
303EW This Subdivision does not limit conditions of permits
This Subdivision does not limit section 303GE (which deals with conditions of permits).