Migratory Birds Act 1980

No. 23, 1980

Compilation No. 2

Compilation date:   13 August 2019

Includes amendments up to: Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended up to Norfolk Island Legislation Amendment (Fees and Other Matters) Ordinance 2019 (F2019L01048)

MIGRATORY BIRDS ACT 1980

TABLE OF PROVISIONS

 1. Short title

 2. Commencement

 3. Interpretation

 4. Permit to take birds

 5. Permit to take birds to be issued subject to conditions

 6. Open seasons

 7. Permit for sale of birds

 8. Permit to sell birds to be issued subject to conditions

 9. Permit for purchase of birds

 10. Permit to purchase birds to be issued subject to conditions

 11. Birds not to be taken otherwise than in accordance with a permit

 12. Persons not to sell birds otherwise than in accordance with a permit

 13. Persons not to purchase birds otherwise than in accordance with a permit

 14. Inspector may require production of permit, etc

 15. Suspension and cancellation of permit

 16. Restrictions on issue of permit, etc

 17. Duration of permit

 18. Appointment of inspector

 19. Inspector ex officio

 20. Delegation

 21. Reviews

 22. Forfeited birds

 23. Fees

 24. Regulations

  . . . .

  Schedule 2

   Birds of a species in danger of extinction

  Schedule 3

   Migratory Birds

  Schedule 4

   Application for Review of a Decision of the Minister

Migratory Birds Act 1980

An Act relating to the protection of migratory birds.

Short title

 1. This Act may be cited as the Migratory Birds Act 1980.

Commencement

 2. This Act shall come into operation on a date fixed by the Administrator by notice published in the Gazette.

Interpretation

 3. In this Act, unless the contrary intention appears —

“bird of a species in danger of extinction” means a bird, alive or dead, of a species or sub‑species specified in Schedule 2, and includes —

(a) eggs or parts of eggs; and

(b) the skin, feathers or any other part,

of such a bird;

“inspector” means —

(a) a person appointed as an inspector under section 18; or

(b)  a person referred to in section 19;

“migratory bird” means a bird, alive or dead, of a species or sub‑species specified in Schedule 3, and includes —

(a) eggs or parts of eggs; and

(b) the skin, feathers or any other part,

of such a bird;

“permit” means a permit in force under this Act;

“police force” means Police Force of Norfolk Island;

“sell” includes exchange;

“take” means take, catch, capture or keep and includes, in relation to a live bird, kill or injure (whether or not for the purpose of taking);

Permit to take birds

 4. (1) A person may apply in writing to the Minister for the grant to him of a permit to take —

(a) migratory birds of a species or sub‑species specified in the application; or

(b) birds of a species in danger of extinction, being birds of a species or sub‑species specified in the application.

  (2) The application shall state the purpose for which birds of a species or sub‑species to which the application relates are proposed to be taken under the permit, being one of the following purposes:

(a) keeping for a scientific purpose;

(b) keeping for an educational purpose;

(c) keeping for a purpose related to propagation;

(d) keeping for purposes related to the protection of persons or property from damage, interference or nuisance caused by birds;

(e) keeping for a purpose prescribed by the regulations.

  (3) Subject to section 16, the Minister may grant a permit to the applicant to take birds of a species or sub‑species in the application.

  (4) The Minister shall specify in the permit the purposes for which birds of the species or sub‑species to which the permit relates may be taken under the permit, being the purpose specified, in accordance with subsection 4(2), in the application.

Permit to take birds to be issued subject to conditions

 5. A permit under section 4 is subject to —

(a) the condition that the holder of the permit shall not take birds of the species or sub‑species to which the permit relates otherwise than for the purpose specified in the permit; and

(b) such other conditions, being conditions of any of the following kinds, as the Minister specifies in the permit:

(i) the number of birds that may be taken alive;

(ii) the number of birds that may be taken dead;

(iii) the number of eggs that may be taken;

(iv) the parts of eggs that may be taken;

(v) the parts of birds of particular descriptions and in particular quantities that may be taken;

(vi) the age and sex of birds that may be taken;

(vii) the condition of birds that may be taken;

(viii) the periods, and times of day, during which birds may be taken;

(ix) the periods, and times of day, during which eggs may be taken;

(x) the numbers of birds that may be taken in particular periods at particular times of the day in relation to the sex, age and condition of the birds;

(xi) the places at which birds may be taken in relation to the age, sex and condition of the birds;

(xii) the places at which eggs may be taken;

(xiii) the methods by which birds may be taken;

(xiv) the contrivances that may be used for taking birds;

(xv) the furnishing to the Minister of information in relation to birds taken.

Open seasons

 6. (1) Subject to section 16, the Minister may, by notice published in the Gazette, declare in relation to migratory birds of a species or sub‑species specified in the notice, that a period specified in the notice shall be an open season in respect of birds of that species or sub‑species.

  (2) Where it is desirable to do so for the protection or conservation of a species or sub‑species of bird in respect of which an open season has been declared by notice under subsection 6(1), the Minister may, by instrument published in the Gazette, revoke the notice.

Permit for sale of birds

 7. (1) A person may apply in writing to the Minister for the grant to him of a permit to sell —

(a) migratory birds of a species or sub‑species specified in the application; or

(b) birds of a species in danger of extinction, being birds of a species or sub‑species specified in the application.

  (2) Subject to section 16, the Minister may grant a permit to the applicant to sell birds of a species or sub‑species specified in the application.

Permit to sell birds to be issued subject to conditions

 8. A permit under section 7 is subject to such conditions, as the Minister specifies in the permit, being conditions relating to any of the following:

(a) the number of birds that may be sold alive;

(b) the number of birds that may be sold dead;

(c) the number of eggs that may be sold;

(d) the parts of eggs that may be sold;

(e) the parts of birds of particular descriptions and in particular quantities that may be sold;

(f) the age and sex of birds that may be sold;

(g) the condition of birds that may be sold;

(h) the periods, and times of day, during which birds may be sold;

(i) the class of persons to which birds may be sold;

(j) the manner in which birds may be offered for sale;

(k) the manner in which birds may be kept for the purposes of sale;

(l) the furnishing to the Minister of information in relation to birds sold.

Permit for purchase of birds

 9. (1) A person may apply in writing to the Minister for the grant to him of a permit to purchase —

(a) migratory birds of a species or sub‑species specified in the application; or

(b) birds of a species in danger of extinction, being birds of a species or sub‑species specified in the application.

  (2) The application shall state the purpose for which birds of the species or sub‑species to which the application relates are proposed to be purchased, being one of the following purposes:

(a) keeping for a scientific purpose;

(b) keeping for an educational purpose;

(c) keeping for a purpose related to propagation;

(d) keeping for a purpose prescribed by the Regulations.

  (3) Subject to section 16, the Minister may grant a permit to the applicant to purchase birds of a species or sub‑species specified in the application.

  (4) The Minister shall specify in the permit the purpose for which birds of a species or sub‑species to which the permit relates may be purchased under the permit, being the purpose specified, in accordance with subsection 9(2), in the application.

Permit to purchase birds to be issued subject to conditions

 10. A permit granted under section 9 is subject to —

(a) the condition that the holder of the permit shall not purchase birds of the species or sub‑species to which the permit relates otherwise than for the purpose specified in the permit in accordance with subsection 9(4); and

(b) such other conditions as the Minister specifies in the permit, being conditions relating to any of the following:

(i) the number of birds that may be purchased alive;

(ii) the number of birds that may be purchased dead;

(iii) the number of eggs that may be purchased;

(iv) the parts of eggs that may be purchased;

(v) the parts of birds of particular descriptions and in particular quantities that may be purchased;

(vi) the age and sex of birds that may be purchased;

(vii) the condition of birds that may be purchased;

(viii) the periods, and times of day, during which birds may be purchased;

(ix) the class of persons from which birds may be purchased;

(x) the manner in which an offer to purchase birds may be made;

(xi) the manner in which birds purchased may be kept;

(xii) the furnishing to the Minister of information in relation to birds purchased.

Birds not to be taken otherwise than in accordance with a permit

 11. (1) A person shall not take a migratory bird otherwise than—

(a) in pursuance of a permit granted under section 4; and

(b) in accordance with the conditions to which the permit is subject.

Penalty: 10 penalty units.

  (2) A person shall not take a bird of a species in danger of extinction otherwise than —

(a) in pursuance of a permit granted under section 4; and

(b) in accordance with the conditions to which the permit is subject.

Penalty: 10 penalty units.

  (3) Subsection 11(1) does not apply in relation to the taking of a bird species or of a sub‑species where the bird is taken —

(a) by a person ordinarily resident in the Territory; and

(b) during a period that is declared by notice under section 6 to be an open season in respect of birds of that species or sub‑species.

  (4) Subsections 11(1) and 11(2) do not apply in relation to the keeping of a bird where the bird is kept —

(a) in pursuance of a permit granted under section 7 or 9; and

(b) in accordance with the conditions to which the permit is subject.

Persons not to sell birds otherwise than in accordance with a permit

 12. A person shall not sell, offer for sale or keep for the purpose of sale, a migratory bird, or bird of a species in danger of extinction, otherwise than —

(a) in pursuance of a permit granted under section 7; and

(b) in accordance with the conditions to which the permit is subject.

Penalty: 10 penalty units.

Persons not to purchase birds otherwise than in accordance with a permit

 13. (1) A person shall not purchase or offer to purchase, a migratory bird, or a bird of a species in danger of extinction, otherwise than in pursuance of a permit granted under section 9.

Penalty: 10 penalty units.

  (2) A person who has purchased a migratory bird or a bird of a species in danger of extinction shall not keep the bird otherwise than in accordance with the conditions to which a permit granted to him under section 9 is subject.

Penalty: 10 penalty units.

  (3) If a person is convicted in relation to the same bird of more than one offence under this section, the Court may impose one penalty in respect of all the offences but the penalty shall not exceed the sum of the maximum penalties that could be imposed if a penalty were imposed in respect of each offence separately.

Inspector may require production of permit, etc

 14. (1) An inspector may —

(a) require a person whom he finds committing or reasonably suspects of having committed an offence against this Act to state his full name and usual place of residence and to state whether he holds a permit; and

(b) require a person who holds a permit to produce the permit or evidence of the existence and contents of the permit.

  (2) A person shall not, without reasonable excuse, fail to comply with such a requirement made of him under subsection 14(1).

Penalty: 1 penalty unit.

  (3) Where an inspector (other than a member of the police force who is in uniform) makes a requirement of a person under subsection 14(1), he shall —

(a) in the case of a member of the police force ‑ produce, for inspection by that person, written evidence of the fact that he is a member of the police force; or

(b) in any other case ‑ produce, for inspection by that person, written evidence of the fact that he is an inspector,

and, if he fails to do so, that person is not obliged to comply with the requirement.

Suspension and cancellation of permit

 15. (1) Where —

(a) the holder of a permit is charged with an offence under section 11, 12 or 13 in relation to the permit; and

(b) the Minister considers that the circumstances are of such seriousness that the permit should be suspended pending the determination of the charge,

the Minister may suspend the permit.

  (2) Where, upon the hearing of a charge in respect of which a permit has been suspended under subsection 15(1) —

(a) the charge is found to be proved (whether or not a conviction is recorded) ‑ the Minister may cancel the permit; or

(b) the charge is otherwise disposed of ‑ the Minister shall forthwith remove the suspension of the permit.

Restrictions on issue of permit, etc

 16. (1) The Minister shall not in any year commencing on 1 July —

(a) grant a permit to a person to take, sell or purchase a migratory bird or a bird of a species in danger of extinction; or

(b) declare, in relation to a species or sub‑species of migratory bird, that a period shall be an open season in respect of birds of that species or sub‑species,

unless he is satisfied that —

(c) the birds that may be taken in that year under that permit or under that declaration and under all other permits or declarations under this Act will be replaced in the immediately succeeding breeding season by natural reproduction; and

(d) the variety of species and the balance of the natural ecological systems existing in Norfolk Island will be maintained.

Duration of permit

 17. Subject to section 15, a permit has effect for a period of 1 year, from and including the date on which it is granted.

Appointment of inspector

 18. The Chief Executive Officer may, by instrument in writing, appoint a person to be an inspector.

Inspector ex officio

 19. By force of this section, any member of the police force is an inspector.

Delegation

 20. (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person any of his powers under this Act other than this power of delegation and the power to suspend or cancel a permit.

  (2) A power so delegated, when exercised by the delegate, shall, for the purpose of this Act, be deemed to have been exercised by the Minister.

  (3) A delegation under this section is revocable at will and does not prevent the exercise of a power by the Minister.

Reviews

 21. (1) Where the Minister makes a decision —

(a) to refuse an application for a permit under this Act;

(b) to suspend a permit under subsection 15(1); or

(c) to cancel a permit under paragraph 15(2)(a),

he shall give the person affected by the decision notice in writing of the decision and shall specify in that notice the reasons for the decision.

  (2) The person may, within 28 days, after receipt of that notice, or within such period as the Court, whether before or after the expiration of that period, allows, apply to the Court in accordance with the form in Schedule 4, for a review of the decision of the Minister.

  (3) The Minister shall be the respondent to the proceedings.

  (4) A copy of the application shall be served on the Minister within 7 days after the making of the application.

  (5) The review shall be in the nature of a re‑hearing.

  (6) The Court, upon hearing and determining an application under subsection 21(2) shall —

(a) confirm the decision;

(b) revoke the decision; or

(c) vary the decision,

and may make such other order as justice requires.

  (7) A decision by the Court under subsection 21(6) is final and conclusive and has the same force and effect as a decision of the Minister.

  (8) In this section, “Court” means the Court of Petty Sessions.

Forfeited birds

 22. A bird of a species in danger of extinction or a migratory bird with respect to which an offence has been committed under this Act is forfeited to the Administration.

Fees

 23. The approved fee is payable in respect of the grant of a permit.

Regulations

 24. (1) The Administrator may make Regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

  (2) The Regulations shall not prescribe a purpose in respect of any provision of this Act unless the Commonwealth Minister considers that the purpose is consistent with international agreements as in force from time to time to which Australia is a party relating to the protection of migratory birds, birds in danger of extinction or their environment.

. . . .

 SCHEDULE 2 Section 3

BIRDS OF A SPECIES IN DANGER OF EXTINCTION

 SCHEDULE 3 Section 3

MIGRATORY BIRDS

SCHEDULE 4 Section 21

 NORFOLK ISLAND

 Migratory Birds Act 1980

APPLICATION FOR REVIEW OF A DECISION OF THE MINISTER

In the Court of Petty Sessions

Applicant: (Here insert full name and address of the applicant)

Respondent: (Here insert full name and address of the respondent)

The applicant applies to the Court in pursuance of the Migratory Birds Act 1980 for a review by the Court of the following decision of the Minister of which notice was given to the applicant on (here insert the date on which notice was given to the applicant):

 (Here set out the terms of the decision of the Minister)

Dated this  day of 20  .

 (Signature of the applicant)

NOTES

The Migratory Birds Act 1980 as shown in this consolidation comprises Act No. 23 of 1980 and amendments as indicated in the Tables below.

Table of Amendments