Migratory Birds Ordinance 1980 (HIMI)

Territory of HEARD ISLAND AND McDONALD ISLANDS

Migratory Birds Ordinance 1980

Ordinance No. 2 of 1980 as amended

made under the

Heard Island and McDonald Islands Act 1953

This compilation was prepared on 23 January 2002
taking into account amendments up to Ordinance No. 1 of 1988

Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra

Contents

 1 Short title [see Note 1]

 2 Commencement 

 3 Interpretation 

 4 Permits to take birds 

 5 Permits to take birds to be issued subject to conditions 

 6 Conditions subject to which permits to take birds may be issued             

 7 Permits for the sale of birds 

 8 Permit to sell birds to be issued subject to conditions 

 9 Conditions subject to which permit to sell birds may be issued             

 10 Permits for purchase of birds 

 11 Permits to purchase birds to be issued subject to conditions             

 12 Conditions subject to which permits to purchase birds may be issued             

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

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

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

 16 Inspector may require production of permit etc 

 17 Suspension and cancellation of permits 

 18 Restriction on issue of permit etc 

 19 Appointment of inspector 

 20 Inspectors ex officio 

 21 Delegation 

 22 Review of decision of Minister 

 23 Fees 

 24 Forfeiture 

 25 Regulations 

Schedule 2 Birds of species in danger of extinction 

Schedule 3 Migratory birds 

Notes   

An Ordinance relating to the protection of migratory birds

1 Short title [see Note 1]

  This Ordinance may be cited as the Migratory Birds Ordinance 1980.

2 Commencement

  This Ordinance shall come into operation on a date to be fixed by the Minister by notice published in the Gazette.

3 Interpretation

 (1) In this Ordinance, unless the contrary intention appears:

bird of a species in danger of extinction means a bird, alive or dead, of a species or subspecies 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 19; or

 (b) a person referred to in section 20.

migratory bird means a bird, alive or dead, of a species or subspecies 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 Ordinance.

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).

 (3) A reference in this Ordinance to a member of the Australian Federal Police or to a member of a police force shall be read as including a reference to a special member of the Australian Federal Police.

4 Permits to take birds

 (1) A person may apply in writing to the Minister for the grant of a permit to take:

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

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

 (2) An application under subsection (1) for the grant of a permit shall state the purpose for which birds of a species or subspecies to which the application relates are proposed to be taken under the permit, being:

 (a) in the case of an application for the grant of a permit to take migratory birds — a prescribed purpose referred to in subsection (5); or

 (b) in the case of an application for the grant of a permit to take birds of a species in danger of extinction — a prescribed purpose referred to in subsection (5).

 (3) Subject to section 18, the Minister may, upon application being made in accordance with subsections (1) and (2), grant a permit to a person to take birds of a species or subspecies specified in the application.

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

 (5) For the purpose of subsection (2), each of the following purposes is a prescribed purpose:

 (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 related to the protection of persons or property from damage, interference or nuisance caused by birds;

 (e) keeping for a purpose prescribed by regulations under this Ordinance.

5 Permits to take birds to be issued subject to conditions

  A permit granted under section 4 is subject to:

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

 (b) such other conditions, being conditions of any of the kinds referred to in section 6, as are imposed by the Minister and specified in the permit.

6 Conditions subject to which permits to take birds may be issued

  The kinds of conditions referred to in paragraph 5 (b) are conditions relating to:

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

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

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

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

 (e) the descriptions and quantities of parts of birds that may be taken;

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

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

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

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

 (j) 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;

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

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

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

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

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

7 Permits for the sale of birds

 (1) A person may apply in writing to the Minister for the grant of a permit to sell:

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

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

 (2) Subject to section 18, the Minister may, upon application being made in accordance with subsection (1), grant a permit to a person to sell birds of a species or subspecies to which the application relates.

8 Permit to sell birds to be issued subject to conditions

  A permit granted under section 7 is subject to such conditions, being conditions of any of the kinds referred to in section 9, as are imposed by the Minister and specified in the permit.

9 Conditions subject to which permit to sell birds may be issued

  The kinds of conditions referred to in section 8 are conditions relating to:

 (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 descriptions and quantities of parts of birds 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; or

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

10 Permits for purchase of birds

 (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 subspecies specified in the application; or

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

 (2) An application under subsection (1) for the grant of a permit shall state the purpose for which birds of the species or subspecies to which the application relates are proposed to be purchased, being:

 (a) in the case of an application for the grant of a permit to purchase migratory birds — a prescribed purpose referred to in subsection (5); or

 (b) in the case of an application for the grant of a permit to take birds of a species in danger of extinction — a prescribed purpose referred to in subsection (5).

 (3) Subject to section 18, the Minister may, upon application being made in accordance with subsections (1) and (2), grant a permit to a person to purchase birds of a species or subspecies specified in the application.

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

 (5) For the purposes of subsection (2), each of the following purposes is a prescribed purpose:

 (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 regulations under this Ordinance.

11 Permits to purchase birds to be issued subject to conditions

  A permit granted under section 10 is subject to:

 (a) the condition that the holder of the permit shall not purchase birds of the species or subspecies to which the permit relates otherwise than for the purpose specified in the permit in accordance with subsection 10 (4); and

 (b) such other conditions, being conditions of any of the kinds referred to in section 13, as are imposed by the Minister and specified in the permit.

12 Conditions subject to which permits to purchase birds may be issued

  The kinds of conditions referred to in paragraph 11 (b) are conditions relating to:

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

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

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

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

 (e) the descriptions and quantities of parts of birds that may be purchased;

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

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

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

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

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

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

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

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

 (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 of the permit.

Penalty:   $1,000.

 (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 of the permit.

Penalty:   $1,000.

 (3) Subsections (1) and (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 10; and

 (b) in accordance with the conditions of the permit.

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

  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 of the permit.

Penalty:   $1,000.

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

 (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 10.

Penalty:   $1,000.

 (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 of a permit granted under section 10.

Penalty:   $1,000.

 (3) If a person is convicted in relation to the same bird of more than one offence under this section, the court by which he is convicted may impose in respect of the offences a penalty that shall not exceed the maximum penalty that could be imposed if a penalty were imposed in respect of one offence under this section.

16 Inspector may require production of permit etc

 (1) An inspector may:

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

 (b) require any 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 a requirement made of him under subsection (1) by an inspector.

Penalty:   $100.

 (3) An inspector (other than a member of the police force who is in uniform) who makes a requirement of a person under subsection (1) shall:

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

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

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

17 Suspension and cancellation of permits

 (1) Where:

 (a) the holder of a permit is charged with an offence under section 13, 14 or 15 in relation to the permit; and

 (b) the Minister considers that the circumstances of the offence with which the person is charged 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 (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.

18 Restriction on issue of permit etc

 (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 subspecies of migratory bird, that a period shall be an open season in respect of birds of that species or subspecies;

unless he is satisfied that:

 (c) the birds that may be taken in that year by virtue of that permit or of that declaration and all other permits or declarations under this Ordinance 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 within the Territory will be maintained.

 (2) A permit shall not be in force for a period of more than 1 year.

19 Appointment of inspector

  The Minister may, by instrument in writing, appoint a person as an inspector.

20 Inspectors ex officio

  By force of this section, any member of the police force of the Territory or of the Australian Federal Police is an inspector.

21 Delegation

 (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him, delegate to a person any of his powers under this Ordinance 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 purposes of this Ordinance, be deemed to have been exercised by the Minister.

 (3) A delegation under this section does not prevent the exercise of a power by the Minister.

22 Review of decision of Minister

 (1) Where the Minister makes a decision:

 (a) refusing to approve an application for a permit under this Ordinance;

 (b) suspending a permit under subsection 17 (1); or

 (c) cancelling a permit under paragraph 17 (2) (a);

he shall, by notice in writing within 30 days after the date of the decision, inform the person to whom the decision relates of the decision.

 (2) An application may be made to the Administrative Appeals Tribunal for the review of a decision referred to in subregulation (1).

 (3) A notice referred to in subregulation (1) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.

 (4) A failure to comply with the requirements of subregulation (3) in relation to a decision shall not be taken to affect the validity of the decision.

23 Fees

  A fee of $20 is payable in respect of the grant of a permit.

24 Forfeiture

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

25 Regulations

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

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

Schedule 2 Birds of species in danger of extinction

(section 3)

Schedule 3 Migratory birds

(section 3)

Notes to the Migratory Birds Ordinance 1980

Note 1

The Migratory Birds Ordinance 1980 (in force under the Heard Island and McDonald Islands Act 1953) as shown in this compilation comprise Ordinance No 2 of 1980 amended as indicated in the Tables below.

Table of Ordinances

Table of Amendments