Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (Cth)

Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001

No. 82, 2001

An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for other purposes

Contents

Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001

No. 82, 2001

An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for other purposes

[Assented to 11 July 2001]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001.

2Commencement

(1)
The following provisions of this Act commence on the day on which this Act receives the Royal Assent:
(a)
sections 1, 2 and 3; and
(b)
Part 3 of Schedule 1.
(2)
The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3)
If the remaining provisions of this Act do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

3Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999

Part 1Amendments relating to wildlife

Subsection 224(2)

After “this Division”, insert “(other than an export/import provision)”.

At the end of section 224

Add:
(4)
In this section:
export/import provision means:
(a)
section 232A; or
(b)
section 232B; or
(c)
any other provision of this Division, in so far as that provision relates to section 232A or 232B.
3
Subdivision D of Division 3 of Part 13 (heading)
Repeal the heading, substitute:

Subdivision D—Offences relating to exports and imports

Before section 233

Insert:

232AExport of cetaceans

(1)
Subject to section 235, a person is guilty of an offence if the person exports:
(a)
a cetacean; or
(b)
a part of a cetacean; or
(c)
a product derived from a cetacean.
(2)
An offence against this section is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding 1,000 penalty units, or both.

232BImport of cetaceans

(1)
Subject to section 235, a person is guilty of an offence if the person imports:
(a)
a cetacean; or
(b)
a part of a cetacean; or
(c)
a product derived from a cetacean.
(2)
An offence against this section is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding 1,000 penalty units, or both.

Paragraph 233(1)(b)

After “cetacean”, insert “, part or product, as the case may be,”.

Subsection 233(2)

Omit “2 years”, substitute “5 years”.

Subsection 234(2)

Omit “2 years”, substitute “5 years”.

Section 235

Omit “233”, substitute “232A, 232B, 233”.
Note: The heading to section 235 is altered by omitting “233” and substituting “232A, 232B, 233”.

Subsection 238(2)

After “230,”, insert “232A, 232B,”.

At the end of subsection 238(3)

Add:
; or (d)
all of the following subparagraphs apply:
(i)
the specified action is the export of a part of a cetacean;
(ii)
the export of the part is an export that, under the regulations, is taken to be an export of a personal item;
(iii)
the export of the part will not be detrimental to the conservation of cetaceans;
(iv)
the export of the part is not for commercial purposes; or
(e)
all of the following subparagraphs apply:
(i)
the specified action is the import of a part of a cetacean;
(ii)
the import of the part is an import that, under the regulations, is taken to be an import of a personal item;
(iii)
the import of the part will not be detrimental to the conservation of cetaceans;
(iv)
the import of the part is not for commercial purposes.

After Part 13

Insert:

Part 13A—International movement of wildlife specimens

Division 1—Introduction

303BAObjects of Part

(1)
The objects of this Part are as follows:
(a)
to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;
(b)
to protect wildlife that may be adversely affected by trade;
(c)
to promote the conservation of biodiversity in Australia and other countries;
(d)
to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;
(e)
to promote the humane treatment of wildlife;
(f)
to ensure ethical conduct during any research associated with the utilisation of wildlife;
(h)
to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
Note: CITES means the Convention on International Trade in Endangered Species—see section 528.
(2)
In order to achieve its objects, this Part includes special provisions to conserve the biodiversity of Australian native wildlife.

303BAACertain indigenous rights not affected

To avoid doubt, nothing in this Part prevents an indigenous person from continuing in accordance with law the traditional use of an area for:
(a)
hunting (except for the purposes of sale); or
(b)
food gathering (except for the purposes of sale); or
(c)
ceremonial or religious purposes.

303BBSimplified outline

The following is a simplified outline of this Part:
• This Part sets up a system for regulating the international movement of wildlife specimens.
• A CITES specimen is a specimen of a species included in Appendix I, II or III to the Convention on International Trade in Endangered Species (CITES).
• It is an offence to export or import a CITES specimen unless:
(a)
the exporter or importer holds a permit; or
(b)
an exemption applies.
• A regulated native specimen is a specimen of a native species subject to export control under this Part.
• It is an offence to export a regulated native specimen unless:
(a)
the exporter holds a permit; or
(b)
an exemption applies.
• A regulated live specimen is a live specimen of a species subject to import control under this Part.
• It is an offence to import a regulated live specimen unless the importer holds a permit.
• It is an offence to possess a specimen that was imported in contravention of this Part.

303BCDefinitions

In this Part, unless the contrary intention appears:
eligible listed threatened species means a listed threatened species other than a species in the conservation dependent category.
engage in conduct means:
(a)
do an act; or
(b)
omit to perform an act.
export means:
(a)
export from Australia or from an external Territory; or
(b)
export from the sea;
but does not include:
(c)
export from Australia to an external Territory; or
(d)
export from an external Territory to Australia; or
(e)
export from an external Territory to another external Territory.
export from the sea, in relation to a specimen, means take in a Commonwealth marine area and then take out of that area to another country without bringing into Australia or into an external Territory.
import means:
(a)
import into Australia or into an external Territory; or
(b)
import by way of introduction from the sea;
but does not include:
(c)
import into Australia from an external Territory; or
(d)
import into an external Territory from Australia; or
(e)
import into an external Territory from another external Territory.
import by way of introduction from the sea, in relation to a specimen, means take in the marine environment not under the jurisdiction of any country and then bring into Australia or into an external Territory without having been imported into any other country.
marine environment means the sea, and includes:
(a)
the air space above the sea; and
(b)
the seabed and subsoil beneath the sea.
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.
relevant CITES authority, in relation to a country, means:
(a)
if the country is a party to CITES—a Management Authority of that country; or
(b)
if the country is not a party to CITES—a competent authority of that country within the meaning of Article X of CITES.
sender, in relation to a specimen that is imported into Australia or 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.
take includes:
(a)
in relation to an animal—harvest, catch, capture, trap and kill; and
(b)
in relation to a plant specimen—harvest, pick, gather and cut.
trade means trade within the ordinary meaning of that expression.
Note: See also section 528.

Division 2—CITES species

Subdivision A—CITES species and CITES specimens

303CAListing of CITES species

(1)
The Minister must, by instrument published in the Gazette, establish a list of CITES species for the purposes of this Act.
(2)
The Minister must ensure that the list is established on the commencement of this section.
Note: See section 4 of the Acts Interpretation Act 1901.
(3)
The list must include all species from time to time included in any of Appendices I, II and III to CITES. The list must not include any other species.
(4)
For each species included in the list, there is to be a notation:
(a)
describing the specimens belonging to that species that are included in a particular Appendix to CITES; and
(b)
identifying the Appendix in which the species is included; and
(c)
identifying the date on which the provisions of CITES first applied to the specimens.
(5)
A description mentioned in paragraph (4)(a):
(a)
may cover all specimens that belong to the species; or
(b)
may cover specified kinds of specimens that belong to the species; or
(c)
may state that the inclusion of a specimen in a particular Appendix to CITES is subject to restrictions or conditions.
(6)
A restriction or condition mentioned in paragraph (5)(c) may:
(a)
impose a quantitative limit in relation to the export or import of a specimen; or
(b)
relate to the imposition of a quota in relation to the export or import of specimens; or
(c)
relate to a particular population of a species; or
(d)
reflect any other restriction or condition set out in the relevant Appendix to CITES.
(7)
Subsection (6) does not limit paragraph (5)(c).
(8)
A notation in the list is to be consistent with CITES.
(9)
The Minister may, by instrument published in the Gazette:
(a)
correct an inaccuracy or update the name of a species; or
(b)
amend the list, as necessary, so that it includes all species required to be included in the list under subsection (3); or
(c)
amend the list, as necessary, so that the notations in the list are consistent with CITES.
(10)
A copy of an instrument under subsection (1) or (9) is to be made available for inspection on the Internet.
(11)
For the purposes of this section, it is to be assumed that the definition of specimen in CITES includes a reference to a thing that is a specimen for the purposes of this Act.
Note: See also section 303CB.

303CBStricter domestic measures

(1)
The Minister may, by instrument published in the Gazette, declare that the list referred to in section 303CA has effect as if it were modified as set out in the declaration.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2)
The Minister must not make a declaration under subsection (1) unless:
(a)
the modification has the effect of treating a specified specimen that is included in Appendix II to CITES as if the specimen were included in Appendix I to CITES; or
(b)
the modification has the effect of broadening the range of specimens included in a specified Appendix to CITES in relation to a specified species; or
(c)
the modification has the effect of decreasing a quantitative limit in relation to the export or import of a specimen; or
(d)
the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix I to CITES; or
(e)
the modification has the effect of treating a specified specimen that is not included in Appendix I, II or III to CITES as if the specimen were included in Appendix II to CITES.
(3)
An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4)
A copy of an instrument under subsection (1) is to be made available for inspection on the Internet.
(5)
A reference in this Act to the list referred to in section 303CA is a reference to that list as modified under this section.

Subdivision B—Offences and permit system

303CCExports of CITES specimens

(1)
A person is guilty of an offence if:
(a)
the person exports a specimen; and
(b)
the specimen is a CITES specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Authorised export—permit
(2)
Subsection (1) does not apply if the specimen is exported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.
Authorised export—CITES exemptions
(3)
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.
(4)
Subsection (1) does not apply if the Minister issues a certificate under subsection (5) in relation to the specimen.
(5)
If the Minister is satisfied that a specimen was acquired before the provisions of CITES applied to the specimen, the Minister may issue a certificate to that effect.
(6)
Subsection (1) does not apply if the export of the specimen is an export that, under the regulations, is taken to be an export of a personal or household effect.
Note 1: See paragraph 3 of Article VII of CITES.
Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4) and (6) (see subsection 13.3(3) of the Criminal Code).

303CDImports of CITES specimens

(1)
A person is guilty of an offence if:
(a)
the person imports a specimen; and
(b)
the specimen is a CITES specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Authorised import—permit
(2)
Subsection (1) does not apply if the specimen is imported in accordance with a permit that was issued under section 303CG, 303GB or 303GC and is in force.
Authorised import—CITES exemptions
(3)
Subsection (1) does not apply if the import of the specimen is an import that, under the regulations, is taken to be an import of a personal or household effect.
Note: See paragraph 3 of Article VII of CITES.
(4)
Subsection (1) does not apply if:
(a)
the specimen is a CITES II specimen; and
(b)
the specimen is not a live specimen; and
(c)
the specimen belongs to a species that is not specified in the regulations; and
(d)
in a case where a quantitative limit is applicable to the specimen under a notation in the list referred to in section 303CA—the quantity of the specimen does not exceed that limit; and
(e)
the specimen is within the personal baggage of a person entering Australia or an external Territory; and
(f)
the specimen is not intended for sale or for any other commercial purpose; and
(g)
both:
(i)
the country from which the specimen is proposed to be imported has a relevant CITES authority; and
(ii)
permission to export the specimen from that country has been given by a relevant CITES authority of that country.
(5)
Subsection (1) does not apply if the import of the specimen is an import 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.
(6)
Subsection (1) does not apply if:
(a)
the country from which the specimen is proposed to be imported has a relevant CITES authority; and
(b)
a relevant CITES authority of that country has issued a certificate under paragraph 2 of Article VII of CITES in respect of the specimen.
Note 1: Paragraph 2 of Article VII of CITES deals with a specimen that was acquired before the provisions of CITES applied to the specimen.
Note 2: The defendant bears an evidential burden in relation to the matters in subsections (2), (3), (4), (5) and (6) (see subsection 13.3(3) of the Criminal Code).

303CEApplications for permits

(1)
A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303CG.
(2)
The application must be accompanied by the fee (if any) prescribed by the regulations.

303CFFurther 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.

303CGMinister may issue permits

(1)
The Minister may, on application made by a person under section 303CE, 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 303CC, 303CD, 303DD or 303EK.
(3)
The Minister must not issue a permit unless the Minister is satisfied that:
(a)
the action or actions specified in the permit 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)
the recovery in nature of any taxon to which the specimen belongs; or
(iii)
any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(b)
the specimen was not obtained in contravention of, and the action or actions specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and
(c)
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
(d)
if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA—that restriction or condition has been, or is likely to be, complied with; and
(e)
if the permit authorises the export of a CITES specimen:
(i)
the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
(ii)
the relevant conditions set out in the table in section 303CH have been met; and
(f)
if the permit authorises the import of a CITES specimen:
(i)
the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB); or
(ii)
the relevant conditions set out in the table in section 303CH have been met; and
(g)
if:
(i)
the permit authorises the import of a CITES II specimen; and
(ii)
the proposed import would be an eligible non‑commercial purpose import (within the meaning of section 303FB);
the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and
(h)
if the permit authorises the export of a CITES specimen that is a regulated native specimen—the conditions set out in subsection 303DG(4) have been met; and
(i)
if the permit authorises the import of a CITES specimen that is a regulated live specimen—the conditions set out in subsection 303EN(3) have been met.
(4)
Subsection (3) 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.
(5)
The Minister must not issue a permit to export a specimen (other than a live animal) that has been imported into Australia or an external Territory, unless the Minister is satisfied that:

(a)
the specimen was lawfully imported (section 303GY); and
(b)
if the specimen is a CITES I specimen:
(i)
the country to which the specimen is proposed to be exported has a relevant CITES authority; and
(ii)
permission to import that specimen into that country has been given by a relevant CITES authority of that country.
(6)
This section has effect subject to section 303GA.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303CHSpecific conditions relating to the export or import of CITES specimens for commercial purposes

The following table sets out the conditions mentioned in paragraphs 303CG(3)(e) and (f):

Specific conditions
Item	Category of specimen	Action	Specific conditions
1	CITES I	Import	(a) the proposed import would be an import from an approved CITES‑registered captive breeding program in accordance with section 303FK; or (b) the specimen is, or is derived from, a plant that was artificially propagated (section 527C).
2	CITES I	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the country to which the specimen is proposed to be exported has a relevant CITES authority, and permission to import that specimen into that country has been given by a relevant CITES authority of that country; and (c) the proposed export would be an export from: (i) an approved CITES‑registered captive breeding program in accordance with section 303FK; or (ii) an approved artificial propagation program in accordance with section 303FL.
3	CITES II	Import	(a) the country from which the specimen is proposed to be imported has a relevant CITES authority and permission to export the specimen from that country has been given by a relevant CITES authority of that country; and (b) any of the following subparagraphs applies: (i) the proposed import of the specimen would be an import from an approved commercial import program in accordance with section 303FU; (ii) the specimen is, or is derived from, an animal that was bred in captivity (section 527B); (iii) the specimen is, or is derived from, a plant that was artificially propagated (section 527C).
4	CITES II	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO).
5	CITES III	Import	The country from which the specimen is proposed to be imported has a relevant CITES authority, and permission to export the specimen from that country has been given by a relevant CITES authority of that country.
6	CITES III	Export	(a) the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird; and (b) the proposed export of the specimen would be: (i) an export from an approved captive breeding program in accordance with section 303FK; or (ii) an export from an approved artificial propagation program in accordance with section 303FL; or (iii) an export in accordance with an approved wildlife trade operation (section 303FN); or (iv) an export in accordance with an approved wildlife trade management plan (section 303FO).

303CITime limit for making permit decision

If an application for a permit is made under section 303CE, the Minister must either issue, or refuse to issue, the permit within 40 business days after whichever is the latest of the following days:
(a)
the day on which the application is made;
(b)
if a request for further information in relation to the application is made under section 303CF—the day on which the applicant complies with the request;
(c)
if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).

303CJDuration of permits

A permit under section 303CG:
(a)
comes into force on the date on which it is issued; and
(b)
unless it is sooner cancelled, remains in force for:
(i)
a period of 6 months beginning on the date on which it is issued; or
(ii)
if a shorter period is specified in the permit—that shorter period.

303CKRegister 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 303CE after the establishment of the register; and
(b)
prescribed particulars of decisions made by the Minister under section 303CG after the establishment of the register.
(2)
The register may be maintained by electronic means.
(3)
The register is to be made available for inspection on the Internet.

Subdivision C—Application of CITES

303CLApplication of CITES—Management Authority and Scientific Authority

For the purposes of the application of CITES to Australia:
(a)
the Minister is the Management Authority; and
(b)
the Secretary is the Scientific Authority.

303CMInterpretation of CITES provisions

(1)
Except so far as the contrary intention appears, an expression that:
(a)
is used in the CITES provisions without definition; and
(b)
is used in CITES (whether or not it is defined in, or a particular meaning is assigned to it by, CITES);
has, in the CITES provisions, the same meaning as it has in CITES.
(2)
For the purposes of subsection (1), the CITES provisions consist of:
(a)
this Division; and
(b)
any other provision of this Act in so far as that other provision relates to, or to permits under, this Division.

303CNResolutions of the Conference of the Parties to CITES

(1)
In making a decision under this Part in relation to a CITES specimen, the Minister may have regard to a relevant resolution of the Conference of the Parties under Article XI of CITES.
(2)
Subsection (1) applies to a resolution, whether made before or after the commencement of this section.

Division 3—Exports of regulated native specimens

Subdivision A—Regulated native specimens

303DARegulated native specimens

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.

303DBListing 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.

303DCMinister 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

303DDExports of regulated native specimens

(1)
A person is guilty of an offence if:
(a)
the person exports a specimen; and
(b)
the specimen is a regulated native specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
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).

303DEApplications for permits

(1)
A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303DG.
(2)
The application must be accompanied by the fee (if any) prescribed by the regulations.

303DFFurther 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.

303DGMinister 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.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303DHTime 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:
(a)
the day on which the application is made;
(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;
(c)
if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).

303DIDuration of permits

A permit under section 303DG:
(a)
comes into force on the date on which it is issued; and
(b)
unless it is sooner cancelled, remains in force for:
(i)
a period of 3 years beginning on the date on which it is issued; or
(ii)
if a shorter period is specified in the permit—that shorter period.

303DJRegister 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.
(2)
The register may be maintained by electronic means.
(3)
The register is to be made available for inspection on the Internet.

Division 4—Imports of regulated live specimens

Subdivision A—Regulated live specimens

303EARegulated live specimens

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.

303EBListing 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.

303ECMinister 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

303EDAmendment 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.

303EEApplication 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.

303EFRequirement 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.

303EGTiming 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.

303EHRequesting further information

(1)
If:
(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.

303EINotice 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.

303EJReviews

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

303EKImports of regulated live specimens

(1)
A person is guilty of an offence if:
(a)
the person imports a specimen; and
(b)
the specimen is a regulated live specimen.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
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).

303ELApplications for permits

(1)
A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 303EN.
(2)
The application must be accompanied by the fee (if any) prescribed by the regulations.

303EMFurther 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.

303ENMinister 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.
Note: Section 303GA deals with controlled actions, and actions for which a non‑Part 13A permit is required.

303EOTime 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:
(a)
the day on which the application is made;
(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;
(c)
if section 303GA applies to the application—the day that is applicable under subsection 303GA(2).

303EPDuration of permits

A permit under section 303EN:
(a)
comes into force on the date on which it is issued; and
(b)
unless it is sooner cancelled, remains in force for:
(i)
a period of 3 years beginning on the date on which it is issued; or
(ii)
if a shorter period is specified in the permit—that shorter period.

303EQRegister 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.
(2)
The register may be maintained by electronic means.
(3)
The register is to be made available for inspection on the Internet.

Subdivision D—Marking of certain specimens for the purposes of identification

303ERObject

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.

303ESSpecimens 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).

303ETExtended 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.

303EUSecretary 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.

303EVOffences

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
(b)
the person engages in conduct; 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.
Note: For strict liability, see section 6.1 of the Criminal Code.

303EWThis Subdivision does not limit conditions of permits

This Subdivision does not limit section 303GE (which deals with conditions of permits).

Division 5—Concepts relating to permit criteria

Subdivision A—Non‑commercial purpose exports and imports

303FAEligible non‑commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible non‑commercial purpose export if, and only 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; or
(e)
the export of the specimen would be an export of a household pet in accordance with section 303FG; or
(f)
the export of the specimen would be an export of a personal item in accordance with section 303FH; or
(g)
the export of a specimen would be an export for the purposes of a travelling exhibition in accordance with section 303FI.

303FBEligible non‑commercial purpose imports

For the purposes of this Part, the import of a specimen is an eligible non‑commercial purpose import if, and only if:
(a)
the import of the specimen would be an import for the purposes of research in accordance with section 303FC; or
(b)
the import of the specimen would be an import for the purposes of education in accordance with section 303FD; or
(c)
the import of the specimen would be an import for the purposes of exhibition in accordance with section 303FE; or
(d)
the import of the specimen would be an import for the purposes of conservation breeding or propagation in accordance with section 303FF; or
(e)
the import of the specimen would be an import of a household pet in accordance with section 303FG; or
(f)
the import of the specimen would be an import of a personal item in accordance with section 303FH; or
(g)
the import of a specimen would be an import for the purposes of a travelling exhibition in accordance with section 303FI.

303FCExport or import for the purposes of research

(1)
The export of a specimen is an export for the purposes of research in accordance with this section if:
(a)
the specimen will be used for the purpose of scientific research; and
(b)
the objects of the research are covered by any or all of the following subparagraphs:
(i)
the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;
(ii)
the conservation of biodiversity;
(iii)
the maintenance and/or improvement of human health; and
(c)
the export is not primarily for commercial purposes; and
(d)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import for the purposes of research in accordance with this section if:
(a)
the specimen will be used for the purpose of scientific research; and
(b)
the objects of the research are covered by any or all of the following subparagraphs:
(i)
the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;
(ii)
the conservation of biodiversity;
(iii)
the maintenance and/or improvement of human health; and
(c)
the import is not primarily for commercial purposes; and
(d)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FDExport or import for the purposes of education

(1)
The export of a specimen is an export for the purposes of education in accordance with this section if:
(a)
the specimen will be used for the purpose of education or training; and
(b)
the export is not primarily for commercial purposes; and
(c)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import for the purposes of education in accordance with this section if:
(a)
the specimen will be used for the purpose of education or training; and
(b)
the import is not primarily for commercial purposes; and
(c)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FEExport or import for the purposes of exhibition

(1)
The export of a specimen is an export for the purposes of exhibition in accordance with this section if:
(a)
the specimen will be used for the purpose of an exhibition; and
(b)
the export is not primarily for commercial purposes; and
(c)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import for the purposes of exhibition in accordance with this section if:
(a)
the specimen will be used for the purpose of an exhibition; and
(b)
the import is not primarily for commercial purposes; and
(c)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(3)
In this section:
exhibition includes a zoo or menagerie.

303FFExport or import for conservation breeding or propagation

(1)
The export of a specimen is an export for the purposes of conservation breeding or propagation in accordance with this section if:

(a)
the specimen is a live animal or a live plant; and
(b)
the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c)
the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and
(d)
the export is not primarily for commercial purposes; and
(e)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import for the purposes of conservation breeding or propagation in accordance with this section if:
(a)
the specimen is a live animal or a live plant; and
(b)
the specimen is for use in a program the object of which is the establishment and/or maintenance of a breeding population; and
(c)
the program is a program that, under the regulations, is taken to be an approved co‑operative conservation program; and
(d)
the import is not primarily for commercial purposes; and
(e)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

303FGExport or import of household pets

Export of live native animals
(1)
The export of a live native animal (other than a CITES specimen) is an export of a household pet in accordance with this section if:
(a)
the animal is included in the list referred to in subsection (4); and
(b)
the export is not primarily for commercial purposes; and
(c)
such other conditions as are specified in the regulations have been, or are likely to be, satisfied.
Export of live CITES specimens
(2)
The export of a CITES specimen is an export of a household pet in accordance with this section if:
(a)
the specimen is a live animal; and
(b)
if the animal is a native animal—the animal is included in the list referred to in subsection (4); and
(c)
the export is not primarily for commercial purposes; and
(d)
such other conditions as are specified in the regulations have been, or are likely to be, satisfied.
Import of live animals
(3)
The import of a live animal is an import of a household pet in accordance with this section if:
(a)
the conditions specified in the regulations have been, or are likely to be, satisfied; and
(b)
the import is not primarily for commercial purposes; and
(c)
the animal is included in Part 2 of the list referred to in section 303EB.
Listing of native household pet animals
(4)
The Minister must, by instrument published in the Gazette, establish a list of native household pet animals.
(5)
The list, as first established, must contain the animals referred to in Schedule 7 to the Wildlife Protection (Regulation of Exports and Imports) Act 1982, as in force immediately before the commencement of this section.
(6)
The Minister may, by instrument in the Gazette, amend the list referred to in subsection (4) by:
(a)
including items in the list; or
(b)
deleting items from the list; or
(c)
correcting an inaccuracy or updating the name of a species.
(7)
An instrument under subsection (6) (other than an instrument mentioned in paragraph (6)(c)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

303FHExport or import of personal items

(1)
The export of a specimen is an export of a personal item in accordance with this section if:
(a)
the specimen is not a live specimen; and
(b)
the export is not primarily for commercial purposes; and
(c)
the conditions specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import of a personal item in accordance with this section if:
(a)
the specimen is not a live specimen; and
(b)
the import is not primarily for commercial purposes; and
(c)
the conditions specified in the regulations have been, or are likely to be, satisfied.

303FIExport or import for the purposes of a travelling exhibition

(1)
The export of a specimen is an export for the purposes of a travelling exhibition in accordance with this section if:
(a)
the export is not primarily for commercial purposes; and
(b)
the conditions specified in the regulations have been, or are likely to be, satisfied.
(2)
The import of a specimen is an import for the purposes of a travelling exhibition in accordance with this section if:
(a)
the import is not primarily for commercial purposes; and
(b)
the conditions specified in the regulations have been, or are likely to be, satisfied.

Subdivision B—Commercial purpose exports and imports

303FJEligible commercial purpose exports

For the purposes of this Part, the export of a specimen is an eligible commercial purpose export if, and only 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; or
(d)
the export of the specimen would be an export in accordance with an approved wildlife trade operation (section 303FN); or
(e)
the export of the specimen would be an export in accordance with an approved wildlife trade management plan (section 303FO).
Note: See also subsection 303DD(3), which deals with accredited wildlife trade management plans.

303FKExport or import from an approved captive breeding program

(1)
The export of a specimen is an export from an approved captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved captive breeding program.
(2)
The export of a specimen is an export from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.
(3)
The import of a specimen is an import from an approved CITES‑registered captive breeding program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved CITES‑registered captive breeding program.

303FLExport from an approved artificial propagation program

The export of a specimen is an export from an approved artificial propagation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved artificial propagation program.

303FMExport from an approved aquaculture program

The export of a specimen is an export from an approved aquaculture program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved aquaculture program.

303FNApproved wildlife trade operation

(1)
The export of a specimen is an export in accordance with an approved wildlife trade operation if the specimen is, or is derived from, a specimen that was taken in accordance with a wildlife trade operation declared by a declaration in force under subsection (2) to be an approved wildlife trade operation.
(2)
The Minister may, by instrument published in the Gazette, declare that a specified wildlife trade operation is an approved wildlife trade operation for the purposes of this section.
(3)
The Minister must not declare an operation under subsection (2) unless the Minister is satisfied that:
(a)
the operation is consistent with the objects of this Part; and
(b)
the operation will not be detrimental to:
(i)
the survival of a taxon to which the operation relates; or
(ii)
the conservation status of a taxon to which the operation relates; and
(ba)
the operation will not be likely to threaten any relevant ecosystem including (but not limited to) any habitat or biodiversity; and
(c)
if the operation relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and
(d)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4)
In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(a)
the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity); and
(b)
the effectiveness of the management arrangements for the operation (including monitoring procedures).
(5)
In deciding whether to declare an operation under subsection (2), the Minister must have regard to:
(a)
whether legislation relating to the protection, conservation or management of the specimens to which the operation relates is in force in the State or Territory concerned; and
(b)
whether the legislation applies throughout the State or Territory concerned; and
(c)
whether, in the opinion of the Minister, the legislation is effective.
(6)
A declaration under subsection (2) ceases to be in force at the beginning of the third anniversary of the day on which the declaration took effect. However, this rule does not apply if a period of less than 3 years is specified in the declaration in accordance with subsection 303FT(4).
(7)
If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(8)
A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(9)
A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.
(10)
For the purposes of this section, an operation is a wildlife trade operation if, and only if, the operation is an operation for the taking of specimens and:
(a)
the operation is an operation that, under the regulations, is taken to be a market‑testing operation; or
(b)
the operation is an operation that, under the regulations, is taken to be a small‑scale operation; or
(c)
the operation is an operation that, under the regulations, is taken to be a developmental operation; or
(d)
the operation is a commercial fishery; or
(e)
the operation is an operation that, under the regulations, is taken to be a provisional operation; or
(f)
the operation is an operation of a kind specified in the regulations.
(10A)
In deciding whether to declare that a commercial fishery is an approved wildlife trade operation for the purposes of this section, 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.
(10B)
Subsection (10A) does not limit the matters that may be taken into account in deciding whether to declare that a fishery is an approved wildlife trade operation for the purposes of this section.
(11)
In this section:
fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.
fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a)
a species or type of fish;
(b)
a description of fish by reference to sex or any other characteristic;
(c)
an area of waters or of seabed;
(d)
a method of fishing;
(e)
a class of vessels;
(f)
a class of persons;
(g)
a purpose of activities.

303FOApproved wildlife trade management plan

(1)
The export of a specimen is an export in accordance with an approved wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an approved wildlife trade management plan.
(2)
The Minister may, by instrument published in the Gazette, declare that a specified plan is an approved wildlife trade management plan for the purposes of this section.
(3)
The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:
(a)
the plan is consistent with the objects of this Part; and
(b)
there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of:
(i)
the status of the species to which the plan relates in the wild; and
(ii)
the extent of the habitat of the species to which the plan relates; and
(iii)
the threats to the species to which the plan relates; and
(iv)
the impacts of the activities covered by the plan on the habitat or relevant ecosystems; and
(c)
the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan on:
(i)
a taxon to which the plan relates; and
(ii)
any taxa that may be affected by activities covered by the plan; and
(iii)
any relevant ecosystem (for example, impacts on habitat or biodiversity);
are ecologically sustainable; and
(d)
the activities covered by the plan will not be detrimental to:
(i)
the survival of a taxon to which the plan relates; or
(ii)
the conservation status of a taxon to which the plan relates; or
(iii)
any relevant ecosystem (for example, detriment to habitat or biodiversity); and
(e)
the plan includes measures:
(i)
to mitigate and/or minimise the environmental impact of the activities covered by the plan; and
(ii)
to monitor the environmental impact of the activities covered by the plan; and
(iii)
to respond to changes in the environmental impact of the activities covered by the plan; and
(f)
if the plan relates to the taking of live specimens that belong to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimens are likely to be complied with; and
(g)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4)
In deciding whether to declare a plan under subsection (2), the Minister must have regard to:
(a)
whether legislation relating to the protection, conservation or management of the specimens to which the plan relates is in force in the State or Territory concerned; and
(b)
whether the legislation applies throughout the State or Territory concerned; and
(c)
whether, in the opinion of the Minister, the legislation is effective.
(5)
A declaration under subsection (2) 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 303FT(4).
(6)
If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(7)
A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(8)
A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.

303FPAccredited wildlife trade management plan

(1)
The export of a specimen is an export in accordance with an accredited wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a plan declared by a declaration in force under subsection (2) to be an accredited wildlife trade management plan.
(2)
The Minister may, by instrument published in the Gazette, declare that a specified plan is an accredited wildlife trade management plan for the purposes of this section.
(3)
The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that:
(a)
the plan is in force under a law of the Commonwealth or of a State or Territory; and
(b)
the conditions set out in subsection 303FO(3) have been met in relation to the plan; and
(c)
the plan imposes limits in relation to the taking of specimens; and
(d)
the compliance and enforcement measures relating to the plan are likely to be effective in preventing specimens taken in breach of the plan from being traded or exported; and
(e)
the plan provides for the monitoring of:
(i)
the taking of specimens under the plan; and
(ii)
the export of specimens taken under the plan; and
(iii)
the status of the species to which the plan relates in the wild; and
(iv)
the impacts of the activities under the plan on the habitat of the species to which the plan relates; and
(f)
the plan provides for statistical reports about specimens taken under the plan to be given to the Minister on a regular basis; and
(g)
such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
(4)
A declaration under subsection (2) 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 303FT(4).
(5)
If a declaration ceases to be in force, this Act does not prevent the Minister from making a fresh declaration under subsection (2).
(6)
A fresh declaration may be made during the 90‑day period before the time when the current declaration ceases to be in force.
(7)
A fresh declaration that is made during that 90‑day period takes effect immediately after the end of that period.
(8)
The Minister must publish on the Internet copies of reports given as mentioned in paragraph (3)(f).
(9)
The Minister is not required to comply with subsection (8) to the extent to which compliance could reasonably be expected to:
(a)
prejudice substantially the commercial interests of a person; or
(b)
be detrimental to:
(i)
the survival of a taxon to which the plan relates; or
(ii)
the conservation status of a taxon to which the plan relates.

303FQConsultation with State and Territory agencies

Before making a declaration under section 303FO or 303FP, the Minister must consult a relevant agency of each State and self‑governing Territory affected by the declaration.

303FRPublic consultation

(1)
Before making a declaration under section 303FN, 303FO or 303FP, the Minister must cause to be published on the Internet a notice:
(a)
setting out the proposal to make the declaration; and
(b)
setting out sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and
(c)
inviting persons and organisations to give the Minister, within the period specified in the notice, written comments about the proposal.
(2)
A period specified in a notice under subsection (1) must not be shorter than 20 business days after the date on which the notice was published on the Internet.
(3)
In making a decision about whether to make a declaration under section 303FN, 303FO or 303FP, the Minister must consider any comments about the proposal to make the declaration that were given in response to an invitation under subsection (1).

303FRAAssessments

(1)
The regulations may prescribe an assessment process that is to be used for the purposes of sections 303FN, 303FO and 303FP to assess the potential impacts on the environment of:
(a)
a wildlife trade operation; or
(b)
the activities covered by a plan;
where the operation is, or the activities are, likely to have a significant impact on the environment.
(2)
If regulations made for the purposes of subsection (1) apply to a wildlife trade operation or to a plan, the Minister must not declare:
(a)
the operation under subsection 303FN(2); or
(b)
the plan under subsection 303FO(2) or 303FP(2);
unless the assessment process prescribed by those regulations has been followed in relation to the assessment of the operation or plan, as the case may be.
(3)
Without limiting subsection (1), regulations made for the purposes of that subsection may make provision for:
(a)
the application of Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) in relation to the assessment process, subject to such modifications as are specified in the regulations; and
(b)
exemptions from the assessment process.
(4)
In this section:
modifications includes additions, omissions and substitutions.
wildlife trade operation has the same meaning as in subsection 303FN(10), but does not include an operation mentioned in paragraph 303FN(10)(d).

303FSRegister of declarations

(1)
The Minister must cause to be maintained a register that sets out declarations made under section 303FN, 303FO or 303FP.

74
Transitional—section 303FO of the Environment Protection and Biodiversity Conservation Act 1999
(1) This item applies if a declaration relating to a program was in force under subsection 10(1) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 immediately before the commencement of this item.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if:
(a)
the declaration had been made under subsection 303FO(2) of that Act; and
(b)
the program were a plan; and
(c)
each reference in the declaration to a program were a reference to a plan; and
(d)
each reference in the declaration to an approved management program were a reference to an approved wildlife trade management plan; and
(e)
each reference in the declaration to the purposes of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 were a reference to the purposes of section 303FO of the Environment Protection and Biodiversity Conservation Act 1999; and
(f)
the period:
(i)
beginning on the day on which the declaration took effect; and
(ii)
ending when the declaration would have ceased to be in force if this Act had not been enacted;
were specified in the declaration in accordance with subsection 303FT(4) the Environment Protection and Biodiversity Conservation Act 1999.
75
Transitional—section 303FR of the Environment Protection and Biodiversity Conservation Act 1999

(1) This item applies if:

(a)
before the commencement of this item, the Minister formulated a proposal to declare specimens under section 10A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982; and
(b)
before the commencement of this item, any comments had been given to the Minister in relation to the proposal in response to a notice given under section 9B of the Wildlife Protection (Regulation of Exports and Imports) Act 1982; and
(c)
the proposal related to a particular operation; and
(d)
the operation is a wildlife trade operation for the purposes of section 303FN of the Environment Protection and Biodiversity Conservation Act 1999; and
(e)
after the commencement of this item, the Minister formulates a proposal (the new proposal) to declare the operation under subsection 303FN(2) of the Environment Protection and Biodiversity Conservation Act 1999.
(2) Those comments have effect as if they had been given to the Minister in relation to the new proposal in response to a notice given under subsection 303FR(1) of the Environment Protection and Biodiversity Conservation Act 1999.
76
Transitional—section 303FR of the Environment Protection and Biodiversity Conservation Act 1999

(1) This item applies if:

(a)
before the commencement of this item, the Minister formulated a proposal to declare a program under section 10 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982; and
(b)
before the commencement of this item, any comments had been given to the Minister in relation to the proposal in response to a notice given under section 9B of the Wildlife Protection (Regulation of Exports and Imports) Act 1982; and
(c)
the program is a plan; and
(d)
after the commencement of this item, the Minister formulates a proposal (the new proposal) to declare the plan under subsection 303FO(2) of the Environment Protection and Biodiversity Conservation Act 1999.
(2) Those comments have effect as if they had been given to the Minister in relation to the new proposal in response to a notice given under subsection 303FR(1) of the Environment Protection and Biodiversity Conservation Act 1999.
77
Transitional—section 303FU of the Environment Protection and Biodiversity Conservation Act 1999

(1) This item applies if:

(a)
a declaration relating to specimens was in force under subsection 10A(3) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 immediately before the commencement of this item; and
(b)
the declaration related to a particular program.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if the program were a program that, under regulations made for the purposes of section 303FU of that Act, is taken to be an approved commercial import program.
(3) Subitem (2) ceases to have effect in relation to the program at:
(a)
the time when the declaration would have ceased to be in force if this Act had not been enacted; or
(b)
if an earlier time is specified in the regulations in relation to the program—that earlier time.
(4) Subitem (2) does not prevent the program from becoming an approved commercial import program under regulations made for the purposes of section 303FU of the Environment Protection and Biodiversity Conservation Act 1999 at any time after subitem (2) ceases to have effect in relation to that program.
(5) The Governor‑General may make regulations for the purposes of subitem (3).
78
Transitional—section 303GS of the Environment Protection and Biodiversity Conservation Act 1999
(1) This item applies if an appointment was in force under section 75 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 immediately before the commencement of this item.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if:
(a)
the appointment had been made under the corresponding provision of section 303GS of the Environment Protection and Biodiversity Conservation Act 1999; and
(b)
each reference in the appointment to the purposes of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 were a reference to the purposes of Part 13A of the Environment Protection and Biodiversity Conservation Act 1999.
79
Transitional—section 303GX of the Environment Protection and Biodiversity Conservation Act 1999
(1) This item applies if a declaration was in force under subsection 8A(2) or (3) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 immediately before the commencement of this item.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if:
(a)
the declaration had been made under the corresponding provision of section 303GX of the Environment Protection and Biodiversity Conservation Act 1999; and
(b)
each reference in the declaration to section 8A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 were a reference to section 303GX of the Environment Protection and Biodiversity Conservation Act 1999.
80
Transitional—section 396 of the Environment Protection and Biodiversity Conservation Act 1999
(1) This item applies if an appointment or determination was in force under subsection 58(1) or (2) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 immediately before the commencement of this item.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if:
(a)
the appointment or determination had been made under the corresponding provision of section 396 of the Environment Protection and Biodiversity Conservation Act 1999; and
(b)
the appointment or determination was revoked at the end of the 6‑month period beginning at the commencement of this item; and
(c)
in the case of a determination—each reference in the determination to particular powers conferred on an inspector by the Wildlife Protection (Regulation of Exports and Imports) Act 1982 were a reference to powers conferred on an inspector by the corresponding provisions of the Environment Protection and Biodiversity Conservation Act 1999.
(3) This item does not prevent the Minister, at the end of that 6‑month period, from making a fresh appointment or determination under section 396 of the Environment Protection and Biodiversity Conservation Act 1999 in terms corresponding to the first‑mentioned appointment or determination.
81
Transitional—Part 17 of the Environment Protection and Biodiversity Conservation Act 1999
(1) Part 17 of the Environment Protection and Biodiversity Conservation Act 1999 applies to an offence against the Wildlife Protection (Regulation of Exports and Imports) Act 1982 in a corresponding way to the way in which it applies to an offence against Part 13A of the Environment Protection and Biodiversity Conservation Act 1999.
(2) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if anything done under Part III of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (other than section 58 or 60) before the commencement of this item had been done under the corresponding provision of Part 17 of the Environment Protection and Biodiversity Conservation Act 1999.
(3) The Environment Protection and Biodiversity Conservation Act 1999 has effect, after the commencement of this item, as if anything done under Part III of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 by or in relation to the Designated Authority before the commencement of this item had been done by or in relation to the Secretary under the corresponding provision of Part 17 of the Environment Protection and Biodiversity Conservation Act 1999.

Transitional—regulations

(1) The regulations may make provision for matters of a transitional nature relating to the amendments made by Part 1 of this Schedule.
(2) The Governor‑General may make regulations for the purposes of subitem (1).

Part 3Other amendments

At the end of Division 1 of Part 3

Add:

Subdivision H—Actions that are taken to be covered by this Division

25AActions that are taken to be covered by this Division

(1)
The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2)
To avoid doubt, if, as a result of a regulation made for the purposes of subsection (1), a regulatory provision applies to an action, the action is taken to be described in the provision.
(3)
Regulations made for the purposes of subsection (1) may only specify actions:
(a)
taken in a Territory; or
(b)
taken in a Commonwealth marine area; or
(c)
taken for the purpose of trade or commerce:
(i)
between Australia and another country; or
(ii)
between 2 States; or
(iii)
between a State and a Territory; or
(iv)
between 2 Territories; or
(d)
taken by a constitutional corporation; or
(e)
whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.
(4)
Regulations specifying an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement.
(5)
In this section:
regulatory provision means:
(a)
a civil penalty provision set out in this Division; or
(b)
a provision of this Division that creates an offence.

Subdivision I—Evidentiary certificates

25BEvidentiary certificates

Contravention
(1)
The Minister may issue a written certificate:
(a)
stating that a specified person has contravened, or is contravening, a specified civil penalty provision set out in this Division; and
(b)
setting out particulars of that contravention.
(2)
The Minister may issue a certificate under subsection (1) relating to a particular contravention if the Minister has reason to believe that the person concerned has committed, or is committing, the contravention.
(3)
To avoid doubt, a certificate under subsection (1) may be issued even if any relevant proceedings under section 475 or 481 have been instituted.
Proposal
(4)
The Minister may issue a written certificate stating that, if a specified person were to carry out a proposal to engage in specified conduct, that conduct would contravene a specified civil penalty provision set out in this Division.
(5)
The Minister may issue a certificate under subsection (4) if the Minister has reason to believe that:
(a)
the person proposes to engage in the conduct concerned; and
(b)
the conduct would contravene the civil penalty provision concerned.
(6)
To avoid doubt, a certificate under subsection (4) may be issued even if any relevant proceedings under section 475 have been instituted.

25CCertificate to be given to person

As soon as practicable after issuing a certificate under subsection 25B(1) or (4), the Minister must give a copy of the certificate to the person concerned.

25DEvidentiary effect of certificate

(1)
In any proceedings under section 475 or 481, a certificate under subsection 25B(1) is prima facie evidence of the matters in the certificate.
(2)
In any proceedings under section 475, a certificate under subsection 25B(4) is prima facie evidence of the matters in the certificate.
(3)
A document purporting to be a certificate under subsection 25B(1) or (4) must, unless the contrary is established, be taken to be such a certificate and to have been properly issued.
(4)
The Minister may certify that a document is a copy of a certificate under subsection 25B(1) or (4).
(5)
This section applies to the certified copy as if it were the original.

25EVariation of certificate

(1)
The Minister may vary a certificate under subsection 25B(1) or (4) so long as the variation is of a minor nature.
(2)
If a certificate is varied, the Minister must give the person concerned a written notice setting out the terms of the variation.

25FRevocation of certificate

(1)
The Minister may revoke a certificate under subsection 25B(1) or (4).
(2)
If a certificate is revoked, the Minister must give the person concerned a written notice stating that the certificate has been revoked.

83A

At the end of Part 4

Add:

Division 6—Actions with prior authorisation

43AActions with prior authorisation

(1)
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a)
the action consists of a use of land, sea or seabed; and
(b)
the action was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before the commencement of this Act; and
(c)
immediately before the commencement of this Act, no further environmental authorisation was necessary to allow the action to be taken lawfully.
(2)
In this section:
environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self-governing Territory that has either or both of the following objects (whether express or implied):
(a)
to protect the environment;
(b)
to promote the conservation and ecologically sustainable use of natural resources.

43BActions which are lawful continuations of use of land etc.

(1)
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act. For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use.
(2)
However, subsection (1) does not apply to an action that was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before the commencement of this Act.
Note: Section 43A applies to actions that were specifically authorised under a law before the commencement of this Act.

At the end of section 70

Add:
Deemed referral of proposal
(3)
If:
(a)
the Minister has made a request under subsection (1); and
(b)
the period for compliance with the request has ended; and
(c)
the requested person has not referred the proposal to the Minister in accordance with the request;
the Minister may, within 20 business days after the end of that period, determine in writing that this Act has effect as if:
(d)
if paragraph (1)(a) applies—the requested person had referred the proposal to the Minister under subsection 68(1) at the time the determination was made; or
(e)
if paragraph (1)(b) applies—the requested person had referred the proposal to the Minister under subsection 69(1) at the time the determination was made.
(4)
A determination under subsection (3) has effect accordingly.
(5)
A copy of a determination under subsection (3) is to be given to the requested person.
(6)
Subsection 68(3) and section 72 do not apply to a referral covered by subsection (3) of this section.
(7)
Despite subsection 74(4), section 74 applies to a referral covered by subsection (3) of this section.
(8)
Subsection 74(3) applies to a referral covered by subsection (3) of this section as if the reference in paragraph 74(3)(a) to the referral were a reference to the determination concerned.

84A

Subsection 146(1)

Repeal the subsection, substitute:
(1)
The Minister may agree in writing with a person responsible for the adoption or implementation of a policy, plan or program that an assessment be made of the impacts of actions under the policy, plan or program on a matter protected by a provision of Part 3.

84B

Subsection 146(2) (note 1)

Omit “relevant”.

84C Paragraph 148(1)(a)

Repeal the paragraph, substitute:
(a)
make an agreement with the Minister under section 146 for assessment of the impacts of actions under the plan on each matter protected by a provision of Part 3; and

84D

Paragraph 148(2)(a)

Repeal the paragraph, substitute:
(a)
make an agreement under section 146 with the Minister (the Environment Minister) administering this section for assessment of the impacts of actions under the plan on each matter protected by a provision of Part 3; and

84E

Paragraph 149(a)

Repeal the paragraph, substitute:
(a)
make an agreement with the Minister under section 146 for assessment of the impacts of actions on each matter protected by a provision of Part 3, being actions permitted under the Authority’s policy for managing the fishery; and

84F

Subsection 150(2)

Repeal the subsection, substitute:
Two-thirds of fisheries to be covered by agreements in 3 years
(2)
Before the day that is the third anniversary of this Act commencing, the Australian Fisheries Management Authority must make agreements with the Minister under section 146 for assessment of the impacts of actions on each matter protected by a provision of Part 3, being actions that are permitted under the Authority’s policies for managing at least 2/3 of the fisheries.

84G

Subsection 150(3)

Repeal the subsection, substitute:
All fisheries to be covered by agreements in 5 years
(3)
Before the day that is the fifth anniversary of this Act commencing, the Australian Fisheries Management Authority must make agreements with the Minister under section 146 for assessment of the impacts of actions on each matter protected by a provision of Part 3, being actions that are permitted under the Authority’s policies for managing the fisheries.

84H Subsection 151(2)

Repeal the subsection, substitute:
Policies for all actions to be covered by agreements in 5 years
(2)
Before the day that is the fifth anniversary of this Act commencing, the Minister administering the Torres Strait Fisheries Act 1984 must make agreements under section 146 with the Minister administering this section for assessment of the impacts of the actions on each matter protected by a provision of Part 3, being actions that are permitted by policies under that Act.

84HA

At the end of section 197

Add:
; or (k)
an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 208A.

84HB

Before section 208

Insert:

208AMinister may accredit plans or regimes

The Minister may, by instrument in writing, accredit for the purposes of this Division:
(a)
a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or
(b)
a plan of management for a fishery made by a State or self‑governing Territory and that is in force in the State or Territory; or
(c)
a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force;
if satisfied that:
(d)
the plan or regime requires persons engaged in fishing under the plan or regime to take all reasonable steps to ensure that members of listed threatened species are not killed or injured as a result of the fishing; and

(e)
the fishery to which the plan or regime relates does not, or is not likely to, adversely affect the survival or recovery in nature of the species.

84HC

At the end of section 212

Add:
; or (k)
an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 222A.

84HD

Before section 223

Insert:

222AMinister may accredit plans or regimes

The Minister may, by instrument in writing, accredit for the purposes of this Division:
(a)
a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or
(b)
a plan of management for a fishery made by a State or self‑governing Territory and that is in force in the State or Territory; or
(c)
a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force;
if satisfied that:
(d)
the plan or regime requires persons engaged in fishing under the plan or regime to take all reasonable steps to ensure that members of listed migratory species are not killed or injured as a result of the fishing; and
(e)
the fishery to which the plan or regime relates does not, or is not likely to, adversely affect the conservation status of a listed migratory species or a population of that species.

84HE

Paragraph 231(h)

Repeal the paragraph, substitute:
(h)
an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 245.

84HF

After paragraph 245(b)

Insert:
; or (ba)
a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force;
Note: The heading to section 245 is altered by omitting “of management” and substituting “or regimes”.

84HG

Paragraph 255(k)

Omit “of management”, substitute “or regime”.

84HH

After paragraph 265(b)

Insert:
; or (ba)
a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force;
Note: The heading to section 265 is altered by omitting “of management” and substituting “or regimes”.

84J

Subsection 516A(6)

Omit “actions” (wherever occurring), substitute “activities”.

84K

At the end of section 516A

Add:
(7) In subsection (6):
activities includes:
(a)
developing and implementing policies, plans, programs and legislation; and
(b)
the operations of a department, authority, company or agency referred to in this section.

84L

Section 522B

Repeal the section.

84M

Subsection 523(2)

Repeal the subsection.

Section 524B

Repeal the section.

85A

Section 528 (definition of continuation)

Omit “subsection 523(2)”, substitute “section 43B”.

Section 528 (definition of significant)

Repeal the definition.

Schedule 2Repeal of the Wildlife Protection (Regulation of Exports and Imports) Act 1982

Wildlife Protection (Regulation of Exports and Imports) Act 1982

The whole of the Act

Repeal the Act.
2
Transitional—section 75 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982
Despite the repeal of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 by this Schedule, section 75 of that Act continues to apply, after the commencement of this item, in relation to a proceeding for an offence against that Act committed before that commencement, as if that Act had not been repealed.
3
Transitional—section 75A of the Wildlife Protection (Regulation of Exports and Imports) Act 1982
Despite the repeal of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 by this Schedule, section 75A of that Act continues to apply, after the commencement of this item, in relation to a proceeding for an offence against that Act committed before that commencement, as if that Act had not been repealed.

Transitional—regulations

(1) The regulations may make provision for matters of a transitional nature relating to the repeal of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 by this Schedule.
(2) The Governor‑General may make regulations for the purposes of subitem (1).

Schedule 3—Amendment of other Acts

Biological Control Act 1984

Paragraph 5(2)(b)

Omit “the Wildlife Protection (Regulation of Exports and Imports) Act 1982”, substitute “Part 13A of the Environment Protection and Biodiversity Conservation Act 1999”.

[Minister’s second reading speech made in—

Senate on 24 May 2001

House of Representatives on 27 June 2001]

(92/01)