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

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1998-1999-2000-2001

the parliament of the

commonwealth of australia

                                                         THE SENATE

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

 

explanatory memorandum

 

 

( Circulated by authority of the Minister for the Environment and Heritage,

Senator the Hon. Robert Hill)



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

outline

 

The purpose of this Bill is:

1.        to incorporate the amended provisions of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Wildlife Protection Act) into the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act);

2.        to repeal the Wildlife Protection Act;

3.        to provide for effective savings and transitional arrangements for decisions and processes under the Wildlife Protection Act;

4.        to make some minor consequential amendments to other Commonwealth legislation that is affected by the repeal of the Wildlife Protection Act; and

5.        to introduce three minor, technical amendments to the EPBC Act to improve the operation of the environmental assessment and approval process in the Act.

 

The Bill consists of commencement provisions and 3 schedules.

Schedule 1 - Amendments of the Environment Protection and Biodiversity Conservation Act 1999

Part 1 - Amendments relating to wildlife

 

Part 1 of the Bill incorporates the amended provisions of the Wildlife Protection Act into the EPBC Act.

 

This is primarily achieved by inserting a new Part into the EPBC Act: Part 13A - International movement of wildlife specimens. Part 13A:

1.        sets up a system for regulating the international movement of wildlife species, and

2.        establishes a number of offences, including:

-         the import or export of a CITES specimen without holding an appropriate permit or being subject to an exemption

-         the export of a regulated native specimen without holding an appropriate permit or being subject to an exemption

-         the import of a regulated live specimen without holding a permit or being subject to an exemption

-         the possession of a specimen that was imported in contravention of this Part.

Whales and other cetaceans

 

Division 3 of Part 13 of the EPBC Act, which specifically deals with all cetacean matters, is amended to include the provisions relating to the export and import of cetaceans, a part of a cetacean or a product derived from a cetacean. This means that all provisions relating to cetaceans are consolidated into Part 13 of the EPBC Act.

Part 13A - International movement of wildlife specimens

 

The Objects of Part 13A are:

(a)                 to ensure that Australia complies with its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) ;

(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.

 

CITES entered into force on 1 July 1975 and became enforceable under Australian law in October 1976. CITES has a membership of more than 150 countries which enforce the Convention. These countries participate by controlling trade in an agreed list of species that are considered endangered and by regulating and monitoring trade in others that might become endangered.

 

Some of the ways that this Part enhances protection for Australia’s biodiversity are:

-         Ensuring that any utilisation of Australia’s wildlife for the purposes of commercial export is managed in an ecologically sustainable way;

-         Maintaining a prohibition on the export, for commercial purposes, of live native mammals, birds, amphibians and reptiles;

-         Requiring that before approving the introduction of any new live species to Australia, an assessment is undertaken of the potential impacts of that species on the Australian environment;

-         Requiring that the assessment of any permit applications for wildlife trade includes consideration of the capacity for the actions specified to be detrimental to the survival or recovery in nature of a taxon, or result in detriment to an ecosystem (including habitat and biodiversity);

-         Ensuring that any requirements under the EPBC Act in relation to environmental assessment and approvals or other permits are met before making a decision to a issue a permit under this Part;

-         Increasing penalties related to any offences under the Part.

 

Part 13A contains six Divisions.

 

Division 1 (Introduction) outlines the objects and interpretations. The objects build on the objects that existed under the Wildlife Protection Act. In particular, community expectations concerning biodiversity conservation and the promotion of the principles of ecologically sustainable resource management are now more transparent. Additionally, community concerns relating to the humane treatment of wildlife are now expressed appropriately in the Objects.

 

Division 2 (CITES species) outlines the procedures to address Australia’s obligations under CITES. The structure and language of this Division have been deliberately chosen to mirror that of the CITES treaty, and therefore appear different from that of the Wildlife Protection Act. This will enhance Australia’s capacity to implement its CITES obligations. The high standards of compliance and enforcement remain unchanged.

 

In making a decision under Part 13A that relates to a CITES specimen, the Minister may also taken into account a relevant resolution of the Conference of Parties under CITES.

 

The Minister is to establish a list of CITES species. The list will include all species listed in the Appendices to CITES. It will also include a notation that describes the specimens of each species that are regulated by CITES and identifies both the Appendix in which the species is included and the date on which the provisions of CITES first applied to the specimens. The new list will be more transparent and user-friendly than the corresponding schedules under the Wildlife Protection Act. This list will include all information that potential exporters, importers, the community and decision-makers need to easily determine the status of particular species, populations and products. The new list will also provide greater confidence that Australia’s obligations under CITES are being met in full.

 

The Minister is required to amend this list as necessary to ensure that it reflects the current CITES lists.

 

Article XIV of CITES explicitly recognises the rights of Parties to adopt stricter national measures to restrict or prohibit the trade, taking, possession, or transport of any wildlife species. The Bill allows the Minister to make, by disallowable instrument, declarations to adopt stricter domestic measures in Australia. These declarations will have the effect of regulating a particular species or specimen more strictly than required by its corresponding CITES classification.

 

Under Division 2, it is an offence to import or export a CITES listed specimen unless in accordance with a permit. Certain imports and exports do not require a permit. These exemptions are consistent with those authorised by Article VII to CITES.

 

It is noted that if a CITES specimen is also a native species, the provisions of Division 3 (Exports of regulated native specimens) also are relevant. If a CITES specimen is also live, the provisions of Division 4 (Imports of regulated live specimens) also are relevant.

-         A permit issued for a CITES specimen, even if the specimen is also a native or a live specimen, must always be issued under Division 2.

-         A permit issued under Division 2 will be sufficient for the purposes of any additional permits required under Division 3 or 4.

 

This approach is consistent with arrangements under the Wildlife Protection Act, and recognises that there are additional matters to be considered before granting an approval to export Australian native species, and before permitting the introduction of a new species into the Australian environment.

 

Under certain conditions, the Bill provides for the export and import of CITES specimens in both commercial and non-commercial categories. Non-commercial refers to the export or import of a specimen that is not primarily for the purposes of sale or trade. Commercial organisations such as zoos, which (for example) charge entrance fees for exhibitions, will be able to import or export specimens under one of the primarily non-commercial categories as long as the primary purpose of the import or export is non-commercial and they meet the other strict conditions applicable to these categories. However, a permit will not be granted in respect of any non-commercial category where commercial interests motivate the transaction rather than the legitimate objectives identified as eligible non-commercial purposes (such as conservation breeding and propagation).

 

Division 3 (Exports of regulated native specimens) outlines the procedures established to regulate the export of Australian native species, within the context of ecologically sustainable management.

 

The Minister is to establish the list of exempt native specimens. Initially, this list will include all specimens that are included in Schedule 4 of the Wildlife Protection Act. The new list will be more transparent and user-friendly. There are no changes to conservation obligations. This list will include all information that potential exporters, importers, the community and decision-makers need to easily determine the status of particular species, populations and products.

 

Unless a specimen is included in this list, the export of any native wildlife specimen (including products derived from native specimens) must be authorised by a permit,

 

The export of a native specimen that has been taken in accordance with an accredited wildlife trade management plan (described in Division 5) will be exempt from the requirement to obtain an export permit. However, a plan may be accredited only in limited circumstances and if strict criteria are satisfied.

 

The Minister must not issue a permit for the export, for commercial purposes, of a live native mammal, bird, amphibian or reptile.

 

Division 4 (Imports of regulated live specimens) outlines the procedures for regulating the import of live specimens into Australia.

 

It establishes that no live specimens can be imported into Australia unless included in the list of specimens suitable for live import ¾ a list that must be established by the Minister. This list will have two parts:

-           Part 1 will list those specimens that are unregulated, and thereby do not require an import permit;

-           Part 2 will list allowable regulated specimens. Each specimen on Part 2 will also have a notation that describes any restrictions or conditions that relate to the import of that specimen. Specimens in Part 2 of the list can be imported with a permit.

 

Initially, Part 1 of this list will include all those species currently listed in Schedules 5 and 6 of the Wildlife Protection Act. Part 2 will include those specimens that had previously been granted an import permit under the Wildlife Protection Act. For these specimens, the restrictions and conditions included in the list will reflect the purpose and circumstances that applied to the previous import or imports.

 

As with the other lists established under this Bill, presentation of the information will be significantly different from the relevant Wildlife Protection Act schedules and will be more transparent and user-friendly.

 

The new assessment process is much more transparent, and now appropriately reflects community concern about the importation of live species and their potential impact on the environment process.

 

Division 5 (Concepts relating to permit criteria) establishes the criteria for approval under each category of eligible non-commercial purpose imports and exports and eligible commercial purpose imports and exports.

 

The categories of eligible non-commercial purpose imports and export categories are :

-         Research

-         Education

-         Exhibition

-         Conservation breeding or propagation

-         Household pets

-         Personal items; and

-         Travelling exhibitions.

 

The categories of eligible commercial purpose imports and exports are:

-         Commercial Import Program (imports only)

-         Approved captive breeding, artificial propagation or aquaculture operations

-         Approved Wildlife Trade Operations (native exports only); and

-         Approved Wildlife Trade Management Plans (native exports only).

 

Native exports will also be allowed from an Accredited Wildlife Trade Management Plan (as described in this Division) without a permit.

 

Prior to the grant of any permit under the commercial trade category, the Minister must be satisfied that the operation, plan or program meets requirements set out in the Bill and in regulations.

 

Division 6 (Miscellaneous) includes a range of procedures relating to the administration of permits. Provisions in this Division make it clear that before a decision can be taken in relation to a permit under Part 13A, the applicant must first satisfy all relevant requirements under other parts of the EPBC Act.

 

The Division also sets out a number of additional offences, including that of contravening conditions on a permit, and the possession of illegally imported specimens.

 

Finally, the Division provides for special permit provisions for exceptional circumstances, permits to enable the export and import of specimens to assist investigations, and testing permits to enable the import of live species for the purpose of scientific assessment of potential impact on the environment.

 

Application of precautionary principle in decision-making

 

The Bill amends Part 16 of the EPBC Act to include in section 391 a list of decisions in Part 13A in which the Minister must take account of the precautionary principle.

 

Enforcement

 

The Bill amends Part 17 of the EPBC Act to include additional provisions relating to enforcement of the wildlife trade provisions.

 

Definitions

 

The Bill inserts a new sub-division (E) into Part 23 of the EPBC Act and sets out definitions of specimens, breeding in captivity, artificial propagation and things represented to be CITES specimens.

 

A number of new terms are defined and the Bill amends the definition of some others.

 

National Exotic Bird Registration Scheme

 

As part of the repeal of the Wildlife Protection Act, the National Exotic Bird Registration Scheme has not been retained. The Scheme, which came into operation in 1996, required owners of classified exotic birds to register and maintain records of changes in their holdings of classified birds.

 

Discontinuing the Scheme will allow significant savings in administrative costs but will not result in a lessening of controls in relation to the import of exotic birds. Permits will still be required for the import of all live exotic birds except those included in Part 1 of the list of species suitable for live import under Division 4.

 

Environment Australia will also publish a comprehensive list of bird species that are currently legally held in Australia. A rigorous environment assessment will be required before any new species can be imported.

 

Wildlife Protection Act schedules

 

The following changes have been made to the schedules to the Wildlife Protection Act:

-         Schedule 1 - species on the list of threatened species established under section 178 of the EPBC Act, and species determined to be in danger in Japan under Article III to the ‘Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Habitats’ (JAMBA). The specimens listed on Appendix I of CITES are now included in the list established under clause 303CA. It is not necessary to maintain a list under Division 13A for the other species as they are already listed in the EPBC Act under Division 13.

-         Schedule 2 - specimens listed on Appendix II of CITES are also included in the list established under clause 303CA.

-         Schedule 2A - specimens listed on Appendix III of CITES are also included in the list established under clause 303CA.

-         Schedule 3 - cetaceans, is not longer required. Cetaceans are covered under the provisions of Part 13, Division 3 of the Environment Protection and Biodiversity Conservation Act 1999 .

-         Schedule 4 - exempt natives, is now the list established under clause 303DB.

-         Schedule 5 - domestic animals and plants (no import permit requirement) has been merged with Schedule 6 and established under clause 303EB.

-         Schedule 6 - other plants and animals that have been approved for live import, has been merged with Schedule 5 and established under clause 303EB.

-         Schedule 7 - species of native Australian animals eligible to be treated as household pets, is now established under clause 303FG(4-7).

-         Schedule 8 - the text of CITES is no longer included. The text of CITES is available from other sources such as the Internet.

-         Schedule 9 - exotic birds that are not classified exotic birds (for which no registration is required) is no longer required.

Part 2 - Transitional provisions relating to wildlife

 

Part 2 of the Bill sets out the transitional arrangements.

 

Part 3 - Other amendments

 

This part of the Bill contains amendments designed to improve the operation of the environmental assessment and approvals process in the EPBC Act. The amendments provide the Environment Minister with the ability:

-         where appropriate to have regulations made which will provide greater certainty for stakeholders through the identification of actions that are taken to have a significant impact on matters of national environmental significance;

-         in relevant circumstances to issue an evidentiary certificate designed to prevent a person taking an action which would represent a breach of the EPBC Act, prior to a decision being made on whether an approval will be granted for the action;

-         to make a decision as to whether approval is required under the EPBC Act in the case where a person fails to respond to a request to make a referral. The aim of the amendment is to promote a timely and efficient assessment process and protection of matters of national environmental significance.

 

Schedule 2- Repeal of the Wildlife Protection Act

 

The Bill repeals the Wildlife Protection Act. The Bill includes transitional provisions to allow for the ongoing protection of a witness in any proceedings against an offence of the Wildlife Protection Act that has commenced prior to the repeal of the Wildlife Protection Act. The Bill also provides that regulations may be made for matters of a transitional nature relating to the repeal of the Wildlife Protection Act.

 

Schedule 3- Amendment of other Acts

 

Schedule 3 of the Bill provides for the amendment of the Biological Control Act 1984. The amendment replaces a reference to the Wildlife Protection Act with a reference to the EPBC Act.

 

FINANCIAL IMPACT STATEMENT

 

The Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001 will not cost the Commonwealth more than the existing legislative arrangements it will replace.

 

Regulatory Impact Statement for the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001

Background

 

The Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Wildlife Protection Act) is the legislative basis for meeting Australia’s responsibilities under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Australia has been a party to CITES since 1976.

 

The Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001 will repeal the Wildlife Protection Act and incorporate its amended provisions into the EPBC Act.

 

The purpose of the Wildlife Protection Act is to ensure that trade in wildlife, and wildlife products, is not detrimental to the survival of any species, especially endangered species, or to their natural habitat. It is also designed to prevent the introduction of pests that could adversely affect the Australian environment. To these ends, it regulates the import and export of most live animals and plants, as well as most animal and plant products.

 

The repeal of the Wildlife Protection Act and its incorporation, with amendments, into the EPBC Act are a response to three key factors:

-         The Government’s pre-election policy statement ‘Our Living Heritage’ in which the Government made a commitment to ‘…amend the Wildlife Protection (Regulation of Exports and Imports) Act 1982 to improve protection for endangered species and Australia’s native species’.

-         The report of the Senate Rural and Regional Affairs and Transport References Committee’s ‘Inquiry into Commercial Utilisation of Australian Native Wildlife’. This report was tabled on 30 June 1998 and the Government response to the report was tabled on 8 December 1999.

-         The Commonwealth Government’s program of reforming Commonwealth environment legislation. In 1998, the Government flagged their intention to incorporate the Wildlife Protection Act into the new environment legislation, and also proposed a number of amendments. The EPBC Act, which consolidates and updates five separate pieces of Commonwealth environment protection legislation, commenced on 16 July 2000.

Problem

Why amend the Wildlife Protection Act?

 

The current legislative framework regulating trade in Australian native and CITES-listed wildlife is fundamentally sound. However:

-         The Wildlife Protection Act contains some provisions that are overly cumbersome whilst providing little conservation benefit. These impose an unjustified administrative burden on both industry and government.

-         The Senate Inquiry into the ‘Commercial Utilisation of Australian Native Wildlife’ expressed concern about the efficiency and the enforcement of the Wildlife Protection Act. For example, it can be very difficult to obtain a conviction for some offences against the Wildlife Protection Act.

-         The Wildlife Protection Act has yet to be incorporated into the EPBC Act as foreshadowed in the consultation process for the Reform of Commonwealth Environment Legislation.

 

The proposed amendments are relatively minor and affect the implementation, not the objectives, of the legislative regime. The Bill will improve the capacity of the Commonwealth to protect wildlife that is threatened by trade and to ensure the conservation of Australia’s biodiversity. At the same time, the Bill delivers a more user-friendly process.

Objectives

 

The objects of this Bill are:

(a)                 to ensure that Australia complies with its obligations under CITES;

(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

 

These provisions complement and are consistent with the broad objectives of the EPBC Act.

 

The majority of the amendments proposed involve minor technical adjustments designed to streamline and improve procedures under the Act. Additional statements of specific regulatory impact are provided for proposed amendments in four areas. These are:

1.       Regulations relating to non-commercial specific purpose permits.

2.       Regulations relating to live imports of plants and animals.

3.       Regulations relating to plans and programs for commercial imports and exports.

4.       Regulations relating to the issue, variation and revocation of permits.

Options

 

Option (a): Maintain the status quo

 

Option (b): Amend the Wildlife Protection Act as proposed in 1, 2, 3 and 4 below

 

1. Regulations relating to non-commercial specific purpose permits

 

Proposed amendments shift the emphasis in non-commercial import and export permit applications away from an assessment of the types of institutions towards an assessment of the intended purpose of the proposed action.

Specific purposes include:

-         Research (including scientific exchange)

-         Education or Exhibition

-         Conservation breeding or propagation

-         Pets

-         Personal and household items

-         Travelling exhibitions

 

Criteria for the assessment of permit applications for each purpose is provided in the legislation.

 

2. Regulations relating to live imports of plants and animals

 

With the proposed amendments:

-         for live animal imports, assessment of the facilities of recipient institutions will be required where there is an animal welfare or potential pest issue;

-         facilities such as rabbit hutches and lobster tanks will no longer be required to be granted ‘approved institution’ status before they can receive imports of live animals;

-         procedures for assessing species for live imports will be clarified and made more transparent. They will involve a strategic assessment of the potential impact of introduction of each new live species on the Australian environment - in particular, the potential for that species to have a significant on a matter of National Environmental Significance or to become a pest species. All relevant information will be made available to the public via the Internet. Greater opportunities will be provided for public comment on these assessments, with information being made available on the Internet.

 

3. Regulations relating to plans and programs for commercial imports and exports

 

Proposed amendments would:

-         remove the need for a permit to export native wildlife if a ‘wildlife trade management plan’ has been accredited and the harvesting and export is approved by the State in accordance with the accredited wildlife trade management plan. This amendment does not include trade in live wildlife, CITES listed species, or threatened species. The Minister would have clear powers to revoke accreditation in appropriate cases. Accreditation can occur only in limited cases where strict criteria are met.

-         make provision for ‘commercial import programs’ for species listed on CITES Appendix II, similar to the Wildlife trade management plan arrangements but with specific Regulations that make the assessment of programs overseas workable, while still meeting appropriate standards.

-         allow the Minister to vary any item relating to a wildlife trade management plan or wildlife export trade operation. The amendment is technical - at present, in order to vary duration and the ‘certain circumstances that exist’ criterion, the Minister must revoke and then ‘re-declare’ the management program or wildlife export trade operation.

 

4. Regulations relating to the issue, variation and revocation of permits

 

Proposed amendments would:

-         ensure that commercial native wildlife trade operations or plans and the permits issued under them have the same expiry date, and that fees are charged proportional to the time that they will be valid.

-         provide that the maximum duration of permits be extended to up to five years.

-         ensure that conditions attached to permits continue to apply to the person to whom the permit has been issued, after the act of import or export has been completed. Preventing the contravention of these conditions is currently extremely difficult, which disadvantages the majority who abide by the agreed conditions in good faith.

-         provide that the processes for the revocation, issue and variation of permits are transparent, easy to access and use, and harmonised with other environmental permitting requirements under the EPBC Act.

Impact Analysis

 

Who does the problem and its solution affect?

 

1.       Regulations relating to non-commercial specific purpose permits.

 

Zoo industry, scientific institutions, private individuals, educational institutions

 

2.       Regulations relating to live imports of plants and animals.

 

Organisations engaged in activities relating to species of live animals and plants subject to the Wildlife Protection Act including zoos, scientific institutions, as well as some other organisations and individuals, such as restaurants and pet owners.

 

3.       Regulations relating to plans and programs for commercial imports and exports.

 

Industry and individuals involved in the commercial import or export of wildlife

 

4.       Regulations relating to the issue, variation and revocation of permits.

 

All organisations and individuals engaged in activities regulated under the Wildlife Protection Act.

 

Option (A): Maintain the Status Quo

 

How will the proposed option affect existing regulations and the role of regulatory authorities?

 

Maintaining the status quo will have no effect on existing regulations. Current regulations for approving institutions to receive live animals and plants duplicate State and Territory animal welfare legislation.

 

What are the likely benefits?

 

No identifiable benefits.

 

What are the likely costs?

 

The main costs to the Commonwealth would be:

-         Continuing administrative inefficiencies in the use and distribution of Government resources.

-         Continuing difficulties in enforcing the Wildlife Protection Act.

-         Inconsistent application of approach between matters regulated under the Wildlife Protection Act and those under the EPBC Act.

 

The main costs to industry would be:

-         Unnecessary delays and costs due to current administrative inefficiencies.

-         Uncertainty as to whether possible inconsistencies between the Wildlife Protection Act and the EPBC Act would affect business operations.

-         Ongoing uncertainty in business planning as permits can only be issued for up to 12 months.

-         Continuing threats to legitimate business from the illegal acts of competitors who can avoid current enforcement procedures.

 

Option (B): Amend Wildlife Protection Act as Proposed

 

How will the proposed option affect existing regulations and the role of regulatory authorities?

 

1.       Regulations relating to non-commercial specific purpose permits.

 

Amendment of existing regulations - no other regulatory authorities will be affected.

 

2.       Regulations relating to live imports of plants and animals.

 

Amendment of existing regulations - no other regulatory authorities will be affected.

 

3.       Regulations relating to plans and programs for commercial imports and exports.

 

The proposed amendments will ensure that the degree of scientific knowledge and assessment required by regulations is proportionate to the potential scale and impact of the particular wildlife operation. The highest level of scientific assessment will remain the same for those operations of the largest scale and highest potential impact, while smaller scale operations will be required to meet relatively less stringent requirements. In certain cases current duplication between States and Commonwealth requirements will be removed.

 

The proposed amendments will provide greater flexibility for individuals or companies that are seeking to harvest and export products for experimental market testing.

 

4.       Regulations relating to the issue, variation and revocation of permits.

 

Amendment of existing regulations - no other regulatory authorities will be affected.

 

What are the likely benefits?

The main benefits to the Commonwealth would be:

-         Improved efficiency and consistency of the Commonwealth’s wildlife protection provisions.

-         Consolidation of the wildlife protection provisions into the EPBC Act.

-         Strengthened enforcement protection.

-         A simpler, more responsive legislative basis for promoting wildlife protection and the sustainable use of wildlife resources.

 

The main benefits to industry would be:

-         Removal of cumbersome and unnecessary restrictive legislative obligations.

-         Reduction in illegal competition.

-         Greater certainty in business planning.

-         Certainty about legislative requirements.

-         Increased accountability and transparency of bureaucratic processes

-         Information relevant to stakeholders will be made accessible via the Internet

 

1.       Regulations relating to non-commercial specific purpose permits.

-         An emphasis on the purpose of importing particular animals will streamline access of private zoos to importation without undermining the degree of protection offered. This will also reduce administrative costs currently incurred by invoking ‘exceptional circumstances’ provisions, which are costly to the Commonwealth, time-consuming and uncertain.

-         In specific cases, removing the requirement that native Australian animals be exported into breeding programs will remove an unnecessary obstacle to the export of animals for purposes such as display, education or other reasons, consistent with the objects of the Act. Also, there is currently no express provision precluding individual institutions from withdrawing from breeding programs, thus jeopardising the whole program.

-         Zoos will be able to import animals for a range of legitimate purposes - exhibition, education, display, conservation breeding and research - rather than for breeding purposes alone. All of these purposes are consistent with the objects of the Act.

 

2.       Regulations relating to live imports of plants and animals.

-         The amendments will reduce the number of situations in which assessment of facilities for housing live plants or animals is required. The provision to be amended has required the inappropriate assessment of facilities such as rabbit hutches and lobster tanks, at a cost each time to zoos, small businesses and individuals of $150. The amendments will ensure assessment only in genuine cases of animal welfare and potential risk of escaped pests or disease.

-         The assessment procedures for each species will be clearly laid out in the legislation and transparent. Relevant information for stakeholders, including lists of allowed species and restrictions that apply to particular species, will be available on the Internet.

 

3.       Regulations relating to plans and programs for commercial imports and exports.

 

Currently, a permit is required by the Commonwealth to export native wildlife. With the proposed amendments, a permit will not be necessary for a non-CITES species if a ‘wildlife trade management plan’ has been accredited and the harvesting and export is approved by the State in accordance with the accredited wildlife trade management plan. Accreditation can occur only in limited cases where strict criteria are met. Where accreditation does occur, the removal of this requirement will streamline the permit process and reduce Commonwealth charges by $30 for each permit or $150 for each multiple use permit.

 

The proposed amendments to the import of CITES Appendix II species will eliminate inappropriate assessment procedures and reduce the number of unnecessary seizures resulting in administrative efficiency gains and reduced discomfort and inconvenience for travellers. Conservation objectives will not be compromised.

 

4.       Regulations relating to the issue, variation and revocation of permits.

 

The proposed amendments will ensure that permitting procedures are transparent and streamlined, and that legitimate businesses abiding by agreed conditions are not disadvantaged by the difficulty of enforcing those conditions in other cases. The expiry dates on permits and the plans which enable the permits will be made to match by lengthening the duration of permits, so that exporters will only be required to apply for permits which remain valid for the duration of the approved management plan.

 

What are the likely costs?

 

The main costs to the Commonwealth would be:

-         Minor one-off costs associated with revising procedures for the import and export of wildlife.

-         One-off costs associated with revising procedures for assessments and approvals.

-         Costs arising from the need to educate industry and the community about the legislative changes.

 

The main costs to industry would be:

-         Costs arising from ensuring compliance with the legislative changes, possibly including training staff about these changes. These costs would vary but would be minor, in proportion to the significance of the changes proposed.

 

1.       Regulations relating to non-commercial specific purpose permits.

 

There will be no costs specific to these amendments.

 

 

2.       Regulations relating to live imports of plants and animals.

 

There will be no costs specific to these amendments.

 

3.       Regulations relating to plans and programs for commercial imports and exports.

 

There will be no costs specific to these amendments.

 

4.       Regulations relating to the issue, variation and revocation of permits.

 

There will be no costs specific to these amendments.

Consultation

 

-         On 30 October 1996, the Senate referred the matter of the commercial use of Australian native wildlife to the Senate Rural and Regional Affairs and Transport References Committee for inquiry and report. The Committee received over 340 submissions and took evidence from over 100 witnesses and groups of witnesses at 14 public hearings around Australia. The report of the inquiry was tabled and released on 30 June 1998.

-         The Commonwealth Minister for the Environment, in 1998, issued a consultation paper on the ‘Reform of Commonwealth Environment Legislation’. The consultation paper was made available electronically on the Internet, and 5000 copies of the consultation paper were distributed to interested government and non-government organisations. Submissions on the paper were invited and considered in the development of amendments to Australia’s wildlife protection provisions. Both the Minister and officials held discussion with key interests.

-         In 1998, Graeme Phipps, a zoologist and former zoo executive was contracted by Environment Australia to conduct a review of the processes under the Wildlife Protection Act that affect zoos. The review occurred in consultation with key players in the zoo industry, including the Australasian Regional Association of Zoological Parks and Aquaria (ARAZPA) and staff of both government and private zoos. The report highlighted some of the problems currently experienced within the industry relating to the import and export of live animals, and made a number of recommendations.

 

The proposed amendments are based on the recommendations and needs of key stakeholders, expressed in the consultation processes described above.

 

The primary stakeholders are:

 

Industry

Industry includes commercial exporters of wildlife, the zoo industry and other organisations engaged in activities relating to species of live animals or plants subject to the Wildlife Protection Act. In consultations, industry representatives have been particularly concerned to ensure the administrative efficiency of the regulatory regime.

 

The Senate Committee recommended that the Federal Government review all administrative procedures relating to commercial utilisation of wildlife in Australia with a view to increasing their efficiency so as to ensure that there are no unnecessary hindrances to industry.

 

Amendments relating to zoos and facilities for live animals and plants take into account recommendations from ARAZPA, the zoo industry’s peak body.

 

Conservation organisations and animal welfare groups

Conservation organisations and animal welfare groups have consistently advocated improved enforcement of the Wildlife Protection Act. The enforcement tools proposed in this amendment package address concerns raised in consultation by improving the enforceability of both existing and new provisions.

Conclusion and Recommended Option

 

The proposed amendments are the preferred option because they would:

-         Allow for the smooth incorporation of the Wildlife Protection Act into the EPBC Act.

-         Deliver benefits to all stakeholders by providing for more efficient administration of the wildlife protection provisions of the EPBC Act, without undermining the protection of Australian native and CITES-listed wildlife; and

-         Ensure that the wildlife protection provisions of the EPBC Act can be enforced.

Implementation and Review

 

The proposed amendments will be contained in a Bill to repeal the Wildlife Protection Act and to incorporate the amended provisions into the EPBC Act. The wildlife protection provisions of the EPBC Act would continue to be administered by Environment Australia.

 

Is the preferred option clear, consistent, comprehensible, and accessible to users?

The existing provisions that regulate trade in flora and fauna would be simplified and streamlined, and would be clearer than they are at present. The proposed new provisions will be clear, consistent, comprehensible and accessible to users.

 

What would the impact on industry be? And how would compliance and paper costs be minimised?

The amendments would streamline government processes and remove administrative inefficiencies, thereby reducing industry costs. The amendments would also improve enforcement procedures, thereby challenging the viability of illegal operations in competition with legitimate business.

 

There may be some initial low level compliance costs for industry in adjusting to the proposed changes.

 



ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (WILDLIFE PROTECTION) BILL 2001

NOTES ON CLAUSES

Item 1 - Short Title

This clause provides for the Act to be cited as the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 .

Item 2 - Commencement

This clause provides that the provisions in sections 1, 2 and 3 and Part 3 of Schedule 1 of the Act will commence on the day on which the Act receives Royal Assent. The remaining provisions will commence on a day to be fixed by proclamation, but no more than six months after receiving Royal Assent.

 

Item 3 - Schedule(s)

This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed in accordance with 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 1 - AMENDMENTS RELATING TO WILDLIFE

Item 1 - Subsection 224(2)

This item exempts an export/import provision from the restrictions on the application of provisions in this Division.

Item 2 - At the end of Subsection 224

This item inserts a definition of export/import provision for the purposes of this Division.

Item 3 - Subdivision D of Division 3 of Part 13 (heading)

This item replaces the heading of this Subdivision.

Item 4 - Before section 233

This item inserts two new clauses:

 

232A Export of cetaceans ¾ which makes it an offence, punishable by up to ten years imprisonment or a fine up to 1000 penalty units, or both, to export a cetacean, a part of a cetacean or a product derived from a cetacean.

 

232B Import of cetaceans ¾ which makes it an offence, punishable by up to ten years imprisonment or a fine up to 1000 penalty units, or both, to import a cetacean, a part of a cetacean or a product derived from a cetacean.

 

The offences in clauses 232A and 232B are subject to section 235.

Item 5 - Paragraph 233(1)(b)

This item extends the offence of possession of a cetacean, a part of a cetacean or a product derived from a cetacean to include where the part or product has been unlawfully imported.

Item 6 - Subsection 233(2)

This item increases the penalty for an offence against this section from two years to five years.

Item 7 - Subsection 234(2)

This item increases the penalty for an offence against this section from two years to five years.

Item 8 - Section 235

This item amends the heading and application of this section by replacing the reference to section 233, with a reference to sections 232A, 232B and 233.

Item 9 - Subsection 238(2)

This item inserts a reference to sections 232A and 232B. The effect of this change is that a permit issued under section 238 authorises a person to take an action specified in the permit without breaching section 232A and 232B.

Item 10 - Subsection 238(3)

This item allows the Minister to issue a permit for the non-commercial export or import of a part of a cetacean where: the export or import is taken to be of a personal item (in accordance with the regulations) and will not be detrimental to the conservation of cetaceans. It is intended that the regulations prescribing what is taken to be a personal item will be tightly constrained (for example, a dolphin tooth necklace that was bestowed on a person as part of a traditional ceremony). It is not intended that curios will be prescribed as personal items that can be imported. This provision represents a significant strengthening of the restrictions on the import and export of cetacean products.

Item 11 - After Part 13

This item inserts a new Part - Part 13A ¾ International movement of wildlife specimens.

Part 13A - International Movement of Wildlife Specimens

Division 1 - Introduction

Clause 303BA - Objects of the Part

The objects reinforce Australia’s commitment to CITES, and increase the emphasis on biodiversity and welfare considerations in the regulation of exports and imports of wildlife.

Clause 303BB - Simplified outline

This clause gives a simplified outline of the Part.

Clause 303BC - Definitions

This clause defines terms used in the Part.

Division 2 - CITES species

Subdivision A - CITES species and CITES specimens

Clause 303CA - Listing of CITES species

This clause provides that the Minister must establish a list of CITES species for the purposes of this Act. The list will include all species that are listed in Appendix I, II or III to CITES, as amended from time to time. The list replaces the three separate CITES lists that were maintained under Schedules 1, 2 and 2A of the Wildlife Protection Act.

-         Appendix I lists species that are threatened with extinction and that are, or may be, affected by trade. Trade in specimens of these species is strictly regulated.

-         Appendix II lists species that are not necessarily threatened with extinction now, but may become so unless trade is regulated.

-         Appendix III lists those species that individual Parties to the Convention have identified as being subject to regulation within their jurisdictions in order to prevent or restrict exploitation, and for which they have sought the cooperation of other Parties to control trade.

 

The list will also include notations that:

-         describe the specimens of each species that are regulated under the different CITES Appendices; and

-         identify the particular CITES Appendix in which each species is listed; and

-         identify the date on which the provisions of CITES first applied to the specimens.

 

These notations are to be consistent with CITES.

 

Subsection (5) provides that a description of a specimen may be inclusive (cover all specimens of a listed species), exclusive (cover specified kinds of specimens of the species) or may make the specimen subject to restrictions or conditions.

 

Subsection (6) provides that a restriction or condition may relate to a range of matters. Subsection (7) provides that the types of restrictions or conditions identified in subsection (6) do not limit the types of restrictions or conditions that may be identified for a specimen.

 

The list is to be established by instrument published in the Gazette . Copies of the list will be made available on the Internet.

 

The Minister may amend the list as necessary (by instrument published in the Gazette ) to ensure that it reflects the current CITES lists, and to correct any inaccuracies.

Clause 303CB - Stricter domestic measures

Article XIV of CITES explicitly recognises the rights of Parties to adopt stricter national measures to restrict or prohibit the trade, taking, possession, or transport of any wildlife species.

 

This clause allows the Minister to make, by disallowable instrument, declarations to adopt stricter domestic measures in Australia. These declarations will have the effect of regulating a particular species or specimen more strictly than required by its corresponding CITES classification.

 

Declarations will also have the effect of modifying the list of CITES species referred to in section clause 303CA as set out in the declaration. Subsection (4) provides that any reference in the Act to the list referred to in section clause 303CA is taken to be a reference to the list as modified by this clause.

 

Copies of declarations will be made available on the Internet.

Subdivision B - Offences and permit system

Clause 303CC - Exports of CITES specimens

This clause makes it an offence, punishable by up to ten years imprisonment or a fine up to 1000 penalty units, or both, to export a CITES listed specimen unless in accordance with an export permit issued under clauses 303CG, 303GB or 303GC.

 

Under certain circumstances, the export of a CITES listed specimen does not require a permit:

-         where the export is one that, under the regulations, is taken to be part of a registered non-commercial exchange of scientific specimens between scientific organisations. Under the regulations, the Minister will have responsibility for making determinations in relation to scientific organisations and the exchange of scientific specimens (subclause (3));

-         where the specimen was obtained before the provisions of CITES applied to the specimen (subclause (4)-(5)); or

-         where the export is an export that, under the regulations, is taken to be an export of a personal or household effect (subclause (6)). For the purpose of exports, the regulations will define as personal or household effects only those specimens the trade in which will not have any adverse effect on the conservation status of any species or ecosystem. The regulations will be limited to specimens which, consistent with CITES, are properly regarded as personal or household effects. An example is moulted feathers from a parrot that are included in the personal baggage of someone leaving Australia.

 

These provisions are consistent with the exemptions set out in Article VII to CITES ¾ which provides that in certain circumstances, the provisions of CITES relating to the import or export of specimens do not apply. Article VII specifically authorises a number of exemptions, including:

-         where the Management Authority of the exporting country is satisfied that a specimen was acquired before the provisions of CITES applied to that specimen and where the Management Authority of the exporting country issues a certificate to that effect (Article VII, Paragraph 2). This exemption is given effect to in the Bill in subclauses 303CC(4)-(5) and, in relation to imports, subclause 303CD(6).

-         where the specimens are personal or household effects (Article VII, Paragraph 3). For exports, the Bill gives effect to this exemption in subclause 303CC(6) and, in relation to imports, subclause 303CD(3).

-         the non-commercial loan, donation or exchange between scientists or scientific institutions registered by the Management Authority of herbarium specimens, other preserved, dried or embedded museum specimens and live plant material that carries a label issued or approved by the Management Authority (Article VII, Paragraph 6). This exemption is given effect in the Bill in subclause 303CC(3) and, in relation to imports, subclause 303CD(5).

 

The Wildlife Protection Act allows the export and import of specimens acquired pre-CITES and the exchange between Scientific Institutions. Recognition of the CITES exemption for personal and household effects is new. Implementation of these CITES permit exemptions in the manner set out in the Bill will ensure strong conservation outcomes, while relieving a significant and unnecessary administrative burden, which causes considerable frustration and stress to travellers.

Clause 303CD - Imports of CITES specimens

This clause makes it an offence, punishable by up to ten years imprisonment or a fine up to 1000 penalty units, or both, to import a CITES listed specimen unless in accordance with a permit issued under clauses 303CG, 303GB or 303GC.

 

It is important to note that CITES does not require an import permit for Appendix II specimens. The Bill, however, maintains the position that Australia will require an import permit for Appendix II specimens, subject to limited exemptions. This reinforces Australia’s position as having the most stringent wildlife trade laws in the world.

 

Under certain circumstances, the import of a CITES specimen will not require a permit:

-         where the import is an import that, under the regulations, is taken to be an import of a personal or household effect (subclause (3)). Regulations for this purpose will be strictly limited to recognising specimens that are identified as personal or household effects by another country, where that country does not require an export permit to be issued for the specimen; or

-         in the case of CITES II specimens that are not live or identified in regulations, the specimen is:

-         within the personal baggage of a person entering Australia or an external Territory and is not intended for sale or any other commercial purpose; and

-         the quantity of the specimen in the person’s baggage does not exceed any limit noted in the list referred to in clause 303CA; and

-         permission to export the specimen has been granted by the relevant CITES authority of the country from which the specimen is being imported (subclause (4));

-         where the import is one that, under the regulations is taken to be part of a registered non-commercial exchange of scientific specimens between scientific organisations. Under the regulations, the Minister will have responsibility for making determinations in relation to scientific organisations and the exchange of scientific specimens (subclause (5)); or

-         where the specimen was obtained before the provisions of CITES applied to the specimen (subclause (6)).

These are consistent with the exemptions authorised in Article VII of CITES (referred to under clause 303CC above). The personal and household effects and personal baggage exemptions have not, until now, been recognised by Australia.

The personal baggage exemption applies only to Appendix II specimens. In addition it will, through regulation, be carefully limited to ensure that it does not undermine the conservation effectiveness of the legislation. It will reduce unnecessary administrative costs, freeing up resources, which can be reallocated to issues of conservation significance.

-         For example, it will mean that an import permit is no longer required for limited quantities of American ginseng brought into Australia from the United States as part of personal baggage.

-         However, through regulation, the Government will ensure this exemption does not operate to allow, for example, the import of leopard or lion skins, trophies or other Appendix II specimens for which the Government has specific concerns.

-         It should be noted that CITES does not require an import permit for any Appendix II species ¾ so the Bill imposes stricter requirements than CITES by requiring an import permit for Appendix II specimens subject to the limited exemptions such as the personal baggage provision.

Clause 303CE - Applications for permits

This clause provides for a person to apply to the Minister for a permit to be issued under clause 303CG to import or export a CITES listed specimen. The application is to be made in the form, and accompanied by fees, to be specified in regulations. Such fees will relate to the administrative costs of processing an application for a permit under clause 303CG.

Clause 303CF - Further information

This clause provides that the Minister may seek further information from the applicant in relation to their application for a permit (referred to in clause 303CE). This request must be made within 40 business days of receiving the application and the Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request.

Clause 303CG - Minister may issue permits

The Minister may issue a permit to a person who applies under clause 303CE. Subclause (2) establishes that a permit issued under this clause allows the holder to take the action or actions specified in the permit without breaching clauses 303CC, 303CD, 303DD or 303EK.

 

Subclause (3) provides that the Minister must not issue a permit unless satisfied that:

-         the actions specified in the permit will not be detrimental to, or contribute to trade, which is detrimental to, the survival or recovery in nature of any taxon to which the specimen belongs or to any relevant ecosystem (for example, detriment to habitat or biodiversity). This is an important clause that ensures a focus not only on the direct impacts on the species that is subject to trade, but also on the indirect effects on any relevant ecosystems; and

-         the specimen was not obtained in contravention of, and the action specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

-         if the specimen is a live specimen, any welfare conditions for that specimen that are specified in the regulations have been, or are likely to be complied with; and

-         any restrictions noted in the list referred to in section clause 303CA have been, or are likely to be complied with; and

-         if the permit is for a CITES specimen, the export or import would be an eligible non-commercial purpose (within the meaning of clauses 303FA or 303FB) or, in relation to commercial purpose exports and imports, the relevant conditions as set out in the table in clause 303CH have been met; and

-         if the permit is for an eligible non-commercial purpose import of a CITES II specimen, permission to export the specimen has been granted by the relevant CITES authority of the country from which the specimen is being imported; and

-         where the permit is for the export of a CITES specimen that is also a regulated native specimen, but not a live native mammal, bird, amphibian or reptile, the conditions in clause 303DG (4) have been met; and

-         where the permit is for the import of a CITES specimen that is also a regulated live specimen, the conditions of clause 303EN(3) have been met.

 

Subclauses (4) and (5) note that subclause (3) does not apply in relation to the re-export of a specimen that was lawfully imported into Australia or an external Territory. If the re-export relates to a CITES I specimen, the Minister must be satisfied that the country to which the specimen is being exported has a relevant authority and has given permission to import that specimen.

 

This clause has effect subject to clause 303GA, which deals with controlled actions and actions that require a non-Part 13A permit.

Clause 303CH - Specific conditions relating to the export or import of CITES specimens for commercial purposes
Clause 303CH sets out in table format the conditions that apply to the export or import of CITES specimens for commercial purposes. These conditions are consistent with the requirements set out in CITES. The commercial trade in CITES specimens, particularly Appendix I specimens, is therefore carefully limited. For example, Appendix I is limited to exports of specimens sourced from CITES-registered approved captive breeding programs or specimens that have been artificially propagated. For native species, the live commercial trade in mammals, reptiles, amphibians or birds is not permitted.
Clause 303CI - Time limit for making permit decision

This clause provides that the Minister must make a decision in relation to an application for a permit to be issued under clause 303CG within 40 business days. The 40 business days will be calculated from:

-         the day on which the application was made; or

-         where the Minister has requested further information (under clause 303CF), the day the additional information was received; or

-         where the provisions of clause 303GA apply, the day that is applicable under subclause 303GA(2);

whichever is the latest.

Clause 303CJ - Duration of permits

This clause provides that the duration of a permit issued under clause 303CG will be six months from the date on which it was issued, unless a shorter period is specified or the permit is revoked. Under CITES, a permit for the import or export of a CITES listed specimen can only be issued for up to six months.

Clause 303CK - Register of applications and decisions

This clause provides that the Minister must establish a register that contains prescribed particulars of applications for CITES export and import permits under clause 303CE and prescribed particulars of decisions by the Minister under clause 303CG.

 

The register may be maintained electronically and will be made available for inspection on the Internet.

 

This approach will allow any interested person to electronically obtain information about applications and decisions at any time.

Subdivision C - Application of CITES

Clause 303CL - Application of CITES - Management Authority and Scientific Authority

This clause provides that for the purposes of the application of CITES to Australia, the Environment Minister is the CITES Management Authority and the Secretary of the Department of the Environment and Heritage is the Scientific Authority.

 

Delegation in relation to these responsibilities is subject to section 515, which empowers both the Minister and the Secretary to delegate their powers under the Act to an officer or employee in the Department. In relation to certain decisions covered by Part 13A, such as the making of disallowable instruments, it is not intended that the Minister or Secretary’s powers would be delegated to an officer or employee below the Senior Executive or Senior Officer level. Any functions that belong to the Minister as a consequence of his or her role as the Management Authority under CITES will not be delegated to the Secretary.

Clause 303CM - Interpretation of CITES provisions

Clause 303CM provides that except where a contrary intention appears, an expression that is used in the CITES provisions without definition and is used in CITES (whether defined or not), has in the CITES provisions the same meaning as in CITES.

Clause 303CN - Resolutions of the Conference of the Parties of CITES

This clause provides that the Minister may have regard to a relevant resolution of the Conference of the Parties under Article XI of CITES in making a decision under Part 13A.

Division 3 - Exports of regulated native specimens

Subdivision A - Regulated native specimens

Clause 303DA - Regulated native specimens

This clause defines regulated native specimen for the purposes of this Act.

Clause 303DB - Listing of exempt native specimens

This clause provides that the Minister must establish a list of exempt native specimens. The list is to be established by instrument published in the Gazette . Copies of the instrument will be made available on the Internet.

 

For each specimen on the list, there must be a notation indicating whether the specimen is subject to restrictions or conditions and describing any restrictions or conditions that apply.

 

Subsection (3) provides that a restriction or condition may relate to a range of matters. Subsection (4) provides that the types of restrictions or conditions identified in subsection (3) do not limit the types of restrictions or conditions that may be identified for a specimen.

 

When first established, this list is to contain those specimens listed in Part 1 of Schedule 4 of the Wildlife Protection Act and reflect any restrictions or conditions that applied to each specimen in that Schedule.

 

In relation to marine species, this means that those marine species that are currently listed in Schedule 4 until 31 December 2003 will continue to be an exempt native specimen until that date. If, prior to 31 December 2003, the harvesting of those species is assessed as ecologically sustainable then those species will be remain exempt after 31 December 2003 (see below for provisions relating to amending the list).

 

The list must not include an eligible threatened species unless:

-         the Minister is satisfied that the export of the specimen will not adversely affect the conservation status of the species; and

-         the specimen is subject to a restriction or condition to the effect that the specimen must be, or be derived from an artificially propagated plant (clause 527C) and 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.

 

This is consistent with the procedures adopted under the Wildlife Protection Act for adding listed threatened species to Schedule 4 of that Act. Schedule 4 currently contains listed threatened species that meet these pre-requisites.

Clause 303DC - Minister may amend list

This clause provides that the Minister can amend the list of exempt native specimens by adding or deleting items on the list, or by imposing, varying or revoking a condition or restriction on the list. Such an amendment will be by disallowable instrument published in the Gazette . In addition, the Minister may amend the list to correct an inaccuracy or updating a species name. Amendments of this type will also be published in the Gazette but will not be disallowable.

 

Before amending the list of exempt native specimens (except in relation to correcting an inaccuracy or updating the name of a species), the Minister must consult with any relevant Minister of the Commonwealth, and a relevant Minister of each State and self-governing Territory. The Minister may also consult with other persons or organisations.

 

Copies of instruments will be made available on the Internet.

Subdivision B - Offence and permit system

Clause 303DD - Exports of regulated native specimens

The clause makes it an offence, punishable by up to ten years imprisonment or a fine of 1000 penalty units, or both, to export a regulated native specimen unless in accordance with an export permit issued under clauses 303CG, 303DG, 303GB or 303GC.

 

Under certain circumstances it is not necessary to obtain a permit to export a regulated native specimen:

-         where the export is one that, under the regulations, is taken to be part of a registered non-commercial exchange of scientific specimens between scientific organisations. Under the regulations, the Minister will have responsibility for making determinations in relation to scientific organisations and the exchange of scientific specimens; or

-         where the export is in accordance with an accredited wildlife trade management plan under clause 303FP. This exception applies only if the specimen does not belong to an eligible listed threatened species, is not a CITES specimen and is not a live native mammal, reptile, amphibian or bird, as the Bill retains the ban on the commercial trade of live native mammals, reptiles, amphibians and birds. The conditions which must be satisfied before accreditation can occur are very strict (see clause 303FP) and accreditation can be revoked at any time.

Clause 303DE - Applications for permits

This clause provides for a person to apply to the Minister for a permit to be issued under clause 303DG to export a regulated native specimen. The application is to be made in the form, and accompanied by fees, to be specified in regulations. Such fees will relate to the administrative costs of processing an application for a permit under clause 303DG.

Clause 303DF - Further information

This clause provides that the Minister may seek further information from the applicant in relation to their application for a permit (referred to in clause 303DE). This request must be made within 40 business days of receiving the application and the Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request.

Clause 303DG - Minister may issue permits

The Minister may issue a permit to a person who applies under clause 303DE. Subclause (2) establishes that a permit issued under this clause allows the holder to take the action or actions specified in the permit without breaching clause 303DD.

 

Subclause (3) provides that the Minister must not issue a permit authorising the export of a live native mammal, live native reptile, live native amphibian or live native bird unless satisfied that the export is an eligible non-commercial purpose export (clause 303FA).

 

Subclause (4) provides that the Minister must not issue a permit unless satisfied that:

-         the actions specified in the permit will not be detrimental to, or contribute to trade, which is detrimental to the survival of any taxon to which the specimen belongs or to any relevant ecosystem (for example, detriment to habitat or biodiversity). This ensures that impacts on the species that is the subject of the trade and broader ecosystem impacts, including impacts on biodiversity, are properly considered; and

-         if the specimen is a live specimen, any welfare conditions for that specimen that are specified in the regulations have been, or are likely to be complied with. This provides the Government with the capacity, through regulation, to ensure that any trade in live specimens is conducted in accordance with best practice welfare requirements; and

-         the specimen was not obtained in contravention of, and the action specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

-         if the specimen is an eligible listed threatened species, the export is covered by the provisions in subclause (7) and (8):

-         subclause (7) provides for the export of an eligible listed threatened species if the specimen is from an approved captive breeding program (clause 303FK), an approved artificial propagation program (clause 303FL) or an approved aquaculture program (clause 303FM) and the export of the specimen will not adversely affect the conservation status of the species concerned. However, in accordance with subclause (3), the Minister must not issue a permit for the export of an eligible listed threatened species from one of these programs if the specimen is a live native mammal, live native reptile, live native amphibian or live native bird.

-         subclause (8) provides for the export of an eligible listed threatened species, if the specimen is being exported for the purposes of research (clause 303FC), education (clause 303FD), exhibition (clause 303FE), or conservation breeding or propagation (clause 303FF); and

-         if the specimen is not an eligible listed threatened species the export would be an eligible non-commercial purpose export (clause 303FA) or an eligible commercial purpose export (clause 303FJ).

 

Subclauses (5) and (6) note that subclauses (3) and (4) do not apply in relation to the re-export of a specimen that was lawfully imported into Australia or an external Territory.

 

This clause is subject to clause 303GA, which deals with controlled actions, and actions for which a non-Part 13A permit is required.

Clause 303DH - Time limit for making permit decision

This clause provides that the Minister must make a decision in relation to an application for a permit to be issued under clause 303DE within 40 business days. The 40 business days will be calculated from:

-         the day on which the application was made; or

-         where the Minister has requested further information (under clause 303DEA), the day the additional information was received; or

-         where the provisions of clause 303GA apply, the day that is applicable under subclause 303GA(2)

whichever is the latest.

Clause 303DI - Duration of permits

This clause provides that the duration of a permit issued under clause 303DG will be five years from the date on which it was issued, unless a shorter period is specified or the permit is revoked.

Clause 303DJ - Register of applications and decisions

This clause provides that the Minister must establish a register that contains prescribed particulars of applications for the export of regulated native specimens under clause 303DE and prescribed particulars of decisions by the Minister under clause 303DG.

 

The register may be maintained electronically and will be made available for inspection on the Internet.

 

This approach will allow any interested person to electronically obtain information about applications and decisions at any time.

Division 4 - Imports of regulated live specimens

Subdivision A - Regulated live specimens

Clause 303EA - Regulated live specimens

This clause defines regulated live specimen for the purposes of this Act.

Clause 303EB - Listing of species suitable for live import

This clause provides that the Minister must establish a list of species suitable for live import. The list will be divided into two parts: ‘unregulated specimens’ (Part 1) and ‘allowable regulated specimens’ (Part 2). The list is to be established by instrument published in the Gazette. Copies of the instrument will be made available on the Internet.

 

In summary, specimens listed in Part 1 can be imported without a permit. Specimens on Part 2 can be imported with a permit, in accordance with the restrictions included in the list. Specimens that are not listed may not be imported. The list may only contain live animal or live plant specimens.

 

When first established, Part 1 (unregulated) of the list is to include those specimens listed in Part 1 of Schedule 5 and Part 1 of Schedule 6 of the Wildlife Protection Act. A live plant that has been introduced in accordance with the Quarantine Act 1908 will be taken to be included in Part 1.

 

A CITES specimen must not be included in Part 1.

 

For specimens in Part 2 of the list, there must be a notation indicating whether the specimen is subject to restrictions or conditions and describing any restrictions or conditions that apply.

 

Subclause (8) provides that a restriction or condition may relate to a range of matters. Subclause (9) provides that the types of restrictions or conditions identified in subclause (8) do not limit the types of restrictions or conditions that may be identified for a specimen.

 

When first established, Part 2 (allowable regulated specimens) of the list is to include only those specimens that were identified at the species or sub-species level in an import permit granted under the Wildlife Protection Act. Those conditions or restrictions that will apply to the import of these specimens will reflect the circumstances under which the import permit was granted .

Clause 303EC - Minister may amend lists

This clause provides that the Minister can amend the list of species suitable for live import by adding or deleting items on the list, or by imposing, varying or revoking a condition or restriction on the list. Such an amendment will be by disallowable instrument published in the Gazette . In addition, the Minister may amend the list to correct an inaccuracy or update a species name. Amendments of this type will also be published in the Gazette but will not be disallowable.

 

Before amending the list of species suitable for live import (except in relation to correcting an inaccuracy or updating the name of a species), the Minister must consult with any relevant Minister of the Commonwealth, and a relevant Minister of each State and self-governing Territory. The Minister may also consult with other persons or organisations.

 

Copies of instruments will be made available on the Internet.

 

The Minister cannot amend the list unless he or she has considered either a relevant report under clauses 303ED or 303EE, or a relevant review under clause 303EJ. This means a species cannot be added to the list of species allowed into Australia (with or without a permit unless an environmental assessment has been carried out).

Subdivision B - Assessments relating to the amendment of the list of specimens suitable for import

Clause 303ED - Amendment of list on the Minister’s own initiative

The Minister may formulate a proposal to add an item to the list of specimens suitable for live import. In this case, he or she must cause an assessment to be conducted of the potential impacts on the environment of the proposed amendment and a report to be prepared, in accordance with clause 303EF, on those impacts.

Clause 303EE - Application for amendment of list

This clause provides for a person to apply to the Minister for an item to be added to the list of specimens suitable for live import. The Minister cannot consider such an application until an assessment is made of the potential impacts on the environment of the proposed amendment and a report on those impacts is prepared in accordance with clause 303EF and provided to the Minister.

Clause 303EF - Requirement for assessments

This clause sets out the minimum requirements for an assessment under clauses 303ED(2) or 303EE(2).

Clause 303EG - Timing of decision about proposed amendment

This clause provides that after receiving a report under clauses 303ED or 303EE, the Minister must make a decision in relation to the proposed amendment within 30 business days or such longer period as he or she specifies in writing. The 30 business days or longer period specified by the Minister will be calculated from the first business day after the day on which the report was received.

 

If the Minister specifies a longer period:

-         he or she must give a copy of the notice specifying a longer period to a person applying under clause 303EE (if applicable); and

-         must publish the notice specifying a longer period in accordance with the regulations.

Clause 303EH - Requesting further information

This clause provides that the Minister may seek further information from the applicant in relation to a proposed amendment (referred to in clause 303EE). The Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request.

Clause 303EI - Notice of refusal of proposed amendment

If clause 303EE applies, this clause provides that if the Minister refuses to make the proposed amendment to the list, he or she must give an applicant notice of the refusal.

Clause 303EJ - Reviews

This clause provides that where the Minister has made a decision to include or to refuse to include an item in the list of specimens suitable for live import, the Minister may review that decision at any time within five years. A new assessment will be required if the period between the original decision and the review is greater than five years.

Subdivision C - Offence and permit system

Clause 303EK - Imports of regulated live specimens

This provision makes it an offence, punishable by up to ten years imprisonment or a fine up to 1000 penalty units, or both, to import a regulated live specimen, unless:

-         the specimen is included in Part 2 of the list of specimens suitable for live import (referred to in clause 303EB); and

-         the import is in accordance with a permit issued under clauses 303CG, 303EN, 303GB or 303GC.

In addition, a specimen may be imported in accordance with a “testing permit” issued under clause 303GD.

Clause 303EL - Applications for permits

This clause provides for a person to apply to the Minister for a permit to be issued under clause 303EN. The application is to be made in the form, and accompanied by fees, to be specified in regulations. Such fees will relate to the administrative costs of processing an application for a permit under clause 303EN.

Clause 303EM - Further information

This clause provides that the Minister may seek further information from the applicant in relation to their application for a permit (referred to in clause 303EL). This request must be made within 40 business days of receiving the application and the Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request.

Clause 303EN - Minister may issue permits

The Minister may issue a permit to a person who applies under clause 303EL. Subclause (2) establishes that a permit issued under this clause allows the holder to take the actions specified in the permit without breaching clause 303EK.

 

Subclause (3) provides that the Minister must not issue a permit unless satisfied that:

-         the import would not be likely to threaten biodiversity in the Australian jurisdiction. This is a major advance that will boost the capacity of the Federal Government to protect Australia’s unique environment from potentially invasive species;

-         the specimen is included in Part 2 of the list of species suitable for live import;

-         any restrictions or conditions noted for that species on the list referred to in clause 303EB have been, or are likely to be complied with; and

-         any welfare conditions for that specimen that are specified in the regulations have been, or are likely to be complied with; and

-         the specimen was not obtained in contravention of, and the action specified in the permit would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory.

This clause has effect subject to clause 303GA, which deals with controlled actions and actions for which a non-Part 13A permit is required.

Clause 303EO - Time limit for making permit decision

This clause provides that the Minister must make a decision in relation to an application for a permit to be issued under clause 303EN within 40 business days. The 40 business days will be calculated from:

-         the day on which the application was made; or

-         where the Minister has requested further information (under clause 303DEA), the day the additional information was received; or

-         where the provisions of clause 303GA apply, the day that is applicable under subclause 303GA(2);

whichever is the latest.

Clause 303EP - Duration of permits

This clause provides that the duration of a permit issued under clause 303EN will be five years from the date on which it was issued, unless a shorter period is specified or the permit is revoked.

Clause 303EQ - Register of applications and decision

This clause provides that the Minister must establish a register that contains prescribed particulars of applications for the import of regulated live specimens under clause 303EL and prescribed particulars of decisions by the Minister under clause 303EN.

 

The register may be maintained electronically and will be made available for inspection on the Internet.

 

This approach will allow any interested person to electronically obtain information about applications and decisions at any time.

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

Clause 303ER - Object

This clause sets out the object of this Subdivision.

Clause 303ES - Specimens to which Subdivision applies

This clause provides that this Subdivision applies to a regulated live specimen that has been imported in accordance with a permit under this Division or a permit or authority under the Wildlife Protection Act, or the specimen is a progeny of such a specimen.

Clause 303ET - Extended meaning of marking

This clause defines the meaning of marking for the purposes of the Subdivision.

Clause 303EU - Secretary may make determinations about marking of specimens

This clause provides that the Secretary may make a determination in writing about the marking of specified kinds of specimens for the purposes of identification.

 

Subclause (2) sets out the matters that can be covered by determination.

 

Subclause (3) provides that in the case of a live animal, a determination must not require marking that involves undue pain or distress to, or risk of death of, the animal. Subclause (4) provides that in the case of a live plant, a determination must not require marking that involves undue risk of death of the plant.

 

Determinations made under this clause will be disallowable instruments.

Clause 303EV - Offences

The clause makes it an offence, punishable by a fine of up to 120 penalty units for:

-         an owner not to comply with a determination made under clause 303EU;

-         a person to engage in conduct that causes the removal of the mark, or interferes with the mark or renders the mark unusable (except where such conduct is in accordance with a determination under clause 303EU).

Clause 303EW - This subdivision does not limit conditions of permits

This clause provides that the provisions in this Subdivision do not limit clause 303GE, which deals with conditions of permits.

Division 5 - Concepts relating to permit criteria

Subdivision A - Non-commercial purpose exports and imports
Clause 303FA - Eligible non-commercial purpose exports

This clause lists the following categories of eligible non-commercial purpose exports for the purposes of this Part:

-         research in accordance with clause 303FC;

-         education in accordance with clause 303FD;

-         exhibition in accordance with clause 303FE;

-         conservation breeding or propagation in accordance with clause 303FF;

-         household pets in accordance with clause 303FG;

-         personal items in accordance with clause 303FH;

-         travelling exhibition in accordance with clause 303FI.

 

The application of these purposes in the Bill is consistent with CITES.

Clause 303FB - Eligible non-commercial purpose imports

This clause lists the following categories of eligible non-commercial purpose imports for the purposes of this Part:

-         research in accordance with clause 303FC;

-         education in accordance with clause 303FD;

-         exhibition in accordance with clause 303FE;

-         conservation breeding or propagation in accordance with clause 303FF;

-         household pets in accordance with clause 303FG;

-         personal items in accordance with clause 303FH;

-         travelling exhibition in accordance with clause 303FI.

 

The application of these purposes in the Bill is consistent with CITES.

Clause 303FC - Export or import for the purposes of research

This clause establishes the criteria for the export or import of a specimen for the purpose of research:

-         the specimen being exported or imported will be used for the purpose of scientific research;

-         the objects of the research relate to better understanding and/or knowledge of a taxon to which the specimen belongs, or biodiversity conservation, or the maintenance and/or improvement of human health; and

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

Clause 303FD - Export or import for the purposes of education

This clause establishes the criteria for the export or import of a specimen for the purpose of education:

-         the specimen is being exported or imported for use in education or training; and

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

Clause 303FE - Export or import for the purposes of exhibition

This clause establishes the criteria for the export or import of a specimen for the purpose of exhibition ¾ , which is defined as including a zoo or menagerie:

-         the specimen is being exported or imported for use for the purpose of exhibition; and

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

Clause 303FF - Export or import for conservation breeding or propagation

This clause establishes the criteria for the export or import of a specimen for the purposes of conservation breeding or propagation:

-         the specimen is a live animal or live plant that is being exported or imported for use in a program, the objective of which is to establish and/or maintain a breeding population; and

-         the program in which the specimen will be used meets the requirements set out in the regulations for an approved co-operative conservation program; and

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

 

Imports and exports to zoos can occur either under clause 303FE or clause 303FF. The regulations will identify when it will be appropriate to use exhibition and when it is appropriate to require the specimen to enter a conservation breeding program.

 

In the case of the import and export to zoos, the Wildlife Protection Act required that the zoo be registered as an approved zoological organisation. This requirement has been removed and this clause replaces the Wildlife Protection Act’s emphasis on approved zoological organisations with a more appropriate focus on the purpose of export or import and the conservation program itself.

 

However, it is a fundamental requirement that, for both categories (exhibition and conservation breeding), the export or import must not be primarily for commercial purposes. Accordingly, a permit may not be granted for a transaction that is motivated by commercial interest rather than the legitimate objectives of exhibition or conservation breeding.

Clause 303FG - Export or import of household pets

This clause establishes the criteria under which a live animal can be exported or imported as a household pet. Different criteria apply for the export of a live native animal; a live CITES specimen; and the import of live animals. If the specimen is both a live native animal and a live CITES specimen then it must meet the criteria for both categories.

 

In all three categories, the export or import must not primarily be for commercial purposes and must meet any other conditions specified in the regulations.

 

Live native animals can only be exported as a household pet if the animal is included in the list of native household pet animals.

 

Subclause (4) provides that the Minister must establish, by instrument published in the Gazette , a list of native household pet animals. When first established, the list must contain the animals referred to in Schedule 7 of the Wildlife Protection Act.

 

The Minister may by disallowable instrument in the Gazette , amend the list by adding or deleting items. The Minister may also by instrument in the Gazette amend the list by correcting an inaccuracy or updating the name of a species. An instrument dealing with these matters will not be disallowable.

Clause 303FH - Export or import of personal items

This clause establishes the criteria for the export or import of a specimen that is a personal item:

-         the specimen is not live; and

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

Clause 303FI - Export or import for the purposes of a travelling exhibition

This clause establishes the criteria for the export or import of a specimen for use in a travelling exhibition:

-         the export or import is not primarily for commercial purposes; and

-         the export or import meets any other conditions specified in the regulations.

 

It is intended that the grant of a permit under this category will be subject to conditions to the effect that:

-         in the case of the export of a specimen from Australia or an external Territory, the specimen is returned to Australia or the Territory within a reasonable period after conclusion of the travelling exhibition; and

-         in the case of the import of a specimen to Australia or an external Territory, the specimen is exported from Australia or the Territory within a reasonable period after conclusion of the travelling exhibition.

 

These conditions will extend to any progeny born during the exhibition.

Subdivision B - Commercial purpose exports and imports
Clause 303FJ - Eligible commercial purpose exports

This clause lists the following categories of eligible commercial purpose exports for the purposes of this Part:

-         approved captive breeding program in accordance with clause 303FK;

-         approved artificial propagation program in accordance with clause 303FL;

-         approved aquaculture program in accordance with clause 303FM;

-         approved wildlife trade operation in accordance with clause 303FN; and

-         approved wildlife trade management plan in accordance with clause 303FO.

 

Exports are also possible under an accredited wildlife trade management plan in accordance with clause 303FP ¾ such exports do not require an export permit (refer to clause 303DD(3).

 

The application of these purposes in the Bill is consistent with CITES.

Clause 303FK- Export or import from an approved captive breeding program

This clause provides that a specimen is an export from an approved captive breeding program if the specimen was sourced from a program that under the regulations is taken to be an approved captive breeding program.

 

In accordance with clause 303CH, where the export or import is of a specimen that is listed in Appendix I of CITES, the export or import must be from an approved CITES-registered captive breeding program or be artificially propagated. Subclause (2) and (3) provides that a specimen is an export or import from an approved CITES-registered captive breeding program if the specimen was sourced from a program that under the regulations, is taken to be such a program.

Clause 303FL - Export from an approved artificial propagation program

This clause provides that a specimen is an export from an approved artificial propagation program if that specimen was sourced from a program that under the regulations is taken to be an approved artificial propagation program.

Clause 303FM - Export from an approved aquaculture program

This clause provides that a specimen is an export from an approved aquaculture program if that specimen was sourced from a program that under the regulations is taken to be an approved aquaculture program. This clause is relevant to exports of native specimens that are not CITES specimens.

Clause 303FN - Approved wildlife trade operation

This clause provides that the Minister may, by instrument published in the Gazette, declare an operation to be an approved wildlife trade operation for the purposes of this section. The a pproved wildlife trade operation provisions replace the controlled specimen provisions in the Wildlife Protection Act.

 

Subclause (1) provides that a specimen is an export from an approved wildlife trade operation if the specimen is, or is derived from, a specimen that was taken in accordance with an operation that has been declared by the Minister to be an approved wildlife trade operation. That is, harvest of the relevant species must be carried out in accordance with the defined operation.

 

Subclause (3) provides that the Minister must not make such a declaration unless satisfied that the operation is consistent with the objects of this Part, is not detrimental to the survival or conservation status of a taxon to which the operation relates, and meets any other conditions specified in the regulations. If the operation involves the taking of live specimens that belong to a taxon specified in regulations, the Minister must also be satisfied that the operation is likely to comply with the conditions that, under the regulations, are applicable to the welfare of the specimens.

 

In addition, the Minister:

-         must have regard to the significance of the impact of the operation on an ecosystem (for example, an impact on habitat or biodiversity) and the effectiveness of the operation’s management arrangements; and

-         may have regard to the existence and effectiveness of any State or Territory legislation that relates to the protection, conservation or management of the specimens to which the operation relates.

 

A declaration may be issued for up to three years, unless a shorter period is specified in the declaration. The Wildlife Protection Act allowed a controlled specimen declaration to be issued for a maximum of five years.

 

Subclauses (7), (8) and (9) set out the provisions for making fresh declarations.

 

Subclause (10) provides that for the purposes of this section, an operation can only be considered as a wildlife trade operation if the operation involves the taking of specimens and is one of the following:

-         a market-testing operation (in accordance with the regulations); or

-         a small-scale operation (in accordance with the regulations); or

-         a developmental operation (in accordance with the regulations); or

-         a commercial fishery; or

-         a provisional operation (in accordance with the regulations); or

-         another kind of operation specified in the regulations.

 

It should be noted that the outcomes of any assessment of Commonwealth fisheries carried out under Part 10, Division 2 of the Act are intended to be used for the purposes of deciding whether:

-         to keep the relevant marine species on the exempt list (see clause 303DB); or

-         to permit exports by declaring a commercial fishery an approved wildlife trade operation.

 

This means that the assessment conducted under section 150 will be used for both Part 10, Division 2 and to assess declarations of approved wildlife trade operations.

 

Environmental assessments are also being carried out in relation to State managed fisheries. The assessments will be taken into account in deciding whether the relevant marine species will be retained on the exempt list (clause 303DB) or whether exports will be permitted under a wildlife trade operations declaration.

Clause 303FO - Approved wildlife trade management plan

This clause provides that the Minister may, by instrument published in the Gazette declare an operation to be an approved wildlife trade management plan for the purposes of this section. The a pproved wildlife trade management plan provisions replace the management program provisions in the Wildlife Protection Act.

 

Subclause (1) provides that a specimen is an export from an approved wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with a operation that has been declared by the Minister to be an approved wildlife trade management plan. That is, the harvest of the relevant species must be carried out in accordance with the approved wildlife trade management plan.

 

Subsection (3) provides that the Minister must not make such a declaration unless satisfied that the plan is consistent with the objects of this Part: and

-         there has been an assessment of the environmental impact of the activities covered; and

-         the plan includes management controls directed towards ensuring that the impacts of the activities covered by the plan, on the taxon to which the plan relates or on any taxa that may be affected by the activities, or on any relevant ecosystem are ecologically sustainable; and

-         the activities covered by the plan will not be detrimental to the survival or conservation status of the taxon to which the plan relates, or to any relevant ecosystem; and

-         the plan includes measures to mitigate and/or minimise the environmental impact of the activities covered by the plan, and includes measures to monitor that impact and the ability to respond to changes in that impact; and

-         if the plan involves the taking of live specimens that belong to a taxon specified in the regulations, the Minister must also be satisfied that the operation is likely to comply with the conditions that, under the regulations, are applicable to the welfare of the specimens; and

-         meets any other conditions specified in the regulations.

 

The Bill therefore provides that a declaration can be made only after rigorous environmental assessment of the harvesting and trade related activities. This assessment must address impacts on the harvested species and the potential impacts on the ecosystem (including biodiversity) generally. The plan must incorporate best practice controls ensuring ecological sustainability.

 

The Minister must also have regard to the existence and effectiveness of any State or Territory legislation that relates to the protection, conservation or management of the specimens to which the operation relates.

 

A declaration may be issued for up to five years, unless a shorter period is specified in the declaration.

 

Subclauses (6), (7) and (8) set out the provisions for making fresh declarations.

Clause 303FP - Accredited wildlife trade management plan

This clause provides that the Minister may, by instrument published in the Gazette declare an operation to be an accredited wildlife trade management plan for the purposes of this section.

 

Specimens taken in accordance with an accredited wildlife trade management plan may be exported without an export permit under this Part (referred to in clause 303DD(3)).

 

Subclause (1) provides that a specimen is an export from an accredited wildlife trade management plan if the specimen is, or is derived from, a specimen that was taken in accordance with an operation that has been declared by the Minister to be an accredited wildlife trade management plan. Specimens that are harvested in a manner that does not comply with the accredited plan may not be exported unless a permit is issued.

 

The criteria that must be satisfied before accreditation can occur are very strict. Accreditation is effectively limited to circumstances in which the management plan is world’s best practice. The plan must be based on extensive environmental assessment of impacts on target species and the ecosystem generally. The management controls incorporated in the plan must be very rigorous, providing the highest levels of confidence that relevant activities are ecologically sustainable. Specific (and sustainable) limits on the taking of specimens must be set in the plan. Enforcement and compliance measures must be in place and must be effective. On-going monitoring is required, including the provision of reports to the Minister. In the interest of transparency and reflecting public interest in this matter, these reports will be made public (subject to exceptions that should be interpreted in a manner that promotes the conservation of wildlife and the public interest in having access to relevant information). Importantly, accreditation can be revoked at any time.

 

Subsection (3) provides that the Minister must not make such a declaration unless satisfied that the plan:

-         is in force under a law of the Commonwealth or of a State or Territory; and

-         meets the conditions for an approved wildlife trade management plan (referred to in subclause 303FO(3)); and

-         imposes limits in relation to the taking of specimens; and

-         includes compliance and enforcement measures that are likely to be effective in preventing the trade or export of specimens taken in breach of the plan; and

-         provides for monitoring of the taking and the export of specimens under the plan; and

-         provides for statistical reports about specimens taken under the plan to be given to the Minister on a regular basis; and

-         meets any other conditions specified in the regulations.

 

In relation to the requirement that the plan imposes limits to the taking of specimens, the following are examples of methods that can be used in limiting the taking of specimens:

-          a quantitative limit (quota);

-         restricting the periods or seasons within which a specimen may be taken;

-         limiting the number of operators;

-         restricting the area within which the specimens may be taken;

-         restrictions limiting the technology.

 

The key issue is whether the limits are sufficiently precise to ensure sustainability.

 

These examples are not intended to restrict the types of limits that may be included in a plan.

 

A declaration may be issued for up to five years, unless a shorter period is specified in the declaration.

 

Subclauses (5), (6) and (7) set out the provisions for making fresh declarations.

 

Subclause (8) requires the Minister to publish on the Internet copies of the reports referred to in subclause (3)(f).

 

Subclause (9) states that the Minister is not required to publish a report on the Internet to the extent that publication could be expected to:

-         prejudice substantially the commercial interests of a person; or

-         be detrimental to the survival or conservation status of a taxon to which the plan relates.

Clause 303FQ - Consultation with State and Territory Ministers

This clause provides that before the Minister declares a specified plan to be either an approved wildlife trade management plan or an accredited wildlife trade management plan the Minister must consult a relevant agency of each State and self-governing Territory affected by the declaration. The specified plan may impact on other States and Territories and therefore the Minister will need to consult with relevant agencies from these States and Territories in addition to the State or Territory that is covered by the plan.

Clause 303FR - Public consultation

Before making a declaration under clauses 303FO or 303FP, the Minister must seek public comment by publication on the Internet of a notice:

-         setting out the proposal and providing sufficient information to enable persons and organisations to consider adequately the merits of the proposal; and

-         inviting persons and organisations to give the Minister written comments about the proposal, by the date specified in the notice.

 

Subclause (2) states that the period of time for public comment must be at least 20 business days after the date on which the notice was published on the Internet.

 

Subclause (3) states that the Minister must consider the public comments received in accordance with this section.

Clause 303FS - Register of declarations

This clause provides that the Minister must establish a register that sets out declarations made under clauses 303FN, 303FO and 303FP.

 

The register may be maintained electronically and will be made available for inspection on the Internet.

 

This approach will allow any interested person to electronically obtain information about applications and decisions at any time.

Clause 303FT - Additional provisions relating to declarations

This clause includes additional provisions that are relevant to declarations of wildlife trade operations, approved wildlife trade management plans or an accredited wildlife trade management plan.

 

Subclause (2) states that a declaration can either be made on the Minister’s own initiative or on written application to the Minister.

 

If the Minister considers that a declaration about a plan or operation should be limited to a particular class of specimens, the Minister may make a declaration that limits that approval to that class of specimens. In such a case the declaration must specify the class of specimens. The plan or operation is covered by the declaration only to the extent that the plan or operation relates to that class of specimens.

 

Subclauses (4) and (5) state that the Minister may limit the declaration to a particular period, while certain circumstances exist; or while a certain condition is complied with. In such a case the declaration must specify the period, circumstances or conditions. If the declaration specifies a particular period, then the declaration ceases to be in force at the end of that period.

 

Subclauses (6) and (9) and (10) refer to provisions for revoking a declaration.

 

Subclause (7) refers to provisions for varying a declaration.

 

Subclause (8) states that a condition may relate to reporting or monitoring.

 

Copies of instruments issued either under clauses 303FN, 303FO, 303FP or this clause are to be made available for inspection on the Internet.

Clause 303FU - Approved commercial import program

This clause provides that a specimen is an import from an approved commercial import program if that specimen was sourced from a program that under the regulations is taken to be an approved commercial import program.

Division 6 - Miscellaneous

Clause 303GA - Permit decision - controlled action, and action for which a non-Part 13A permit is required

This clause applies if a permit application is made under clauses 303CE, 303DE or 303EL, and the Minister considers that the proposed action may be, or is related to an action that may be a controlled action; or the proposed action is an action that requires a non-Part 13A permit or relates to such an action.

 

Subclause (2) provides that in such circumstances, the Minister must not issue or refuse to issue the permit until a decision is taken under other relevant parts of the Act:

-         whether the action is, or is related to, an action that is a controlled action (section 75);

-         if the action is, or is related to, a controlled action, the decision to approve, or refuse the taking of the controlled action (section 133);

-         to issue, or to refuse to issue a non-Part 13A permit.

 

Under subclause (3), the Minister must not issue a permit under this Part if the action is, or is related to a controlled action and the Minister decides to refuse the taking of that action; or makes a decision to refuse a non-Part 13A permit.

 

An action for which a non-Part 13A permit is required is an action that would otherwise be prohibited by this Act or the regulations. A non-Part 13A permit includes permits issued under this Act (other than this Part) or the regulations. An example of a non-Part 13A permit is the taking and trading in members of listed threatened species or communities from a Commonwealth area.

 

For the purposes of this section an action that is related to the export or import of a specimen includes:

-         the taking of the specimen and any action that affected the specimen after it was taken and before it is exported or imported; and

If the specimen being exported is derived from another specimen, then the taking of the specimen it was derived from and any action after the specimen was taken and before it is exported or imported are related actions.

Clause 303GB - Exceptional circumstances permit

This clause provides that the Minister may in exceptional circumstances issue a permit to a person who has applied for a permit under clauses 303CG, 303DG or 303EN even if the Minister is not satisfied about a matter that is a pre-condition for granting the permit. However, this clause has a limited scope and allows the grant of a permit only if there are truly exceptional circumstances. In addition, the Minister must not issue the permit unless satisfied that the export or import of the specimen would not be contrary to the objects of this Part, and that the proposed action will not adversely affect biodiversity.

 

The clause is not intended to allow the grant of a permit in a manner that, in effect merely circumvents the provisions of this Part in relation to an otherwise routine application.

 

A permit issued under this clause authorises the holder to take the actions specified in the permit without breaching the offences in clauses 303CC, 303CD, 303DD or 303EK.

 

Subclause (3) provides that where a permit issued under this clause relates to a CITES specimen, the duration of the permit will be six months from the date on which it was issued, unless a shorter period is specified or the permit is revoked. Where a permit issued under this clause relates to a non-CITES specimen, the duration of the permit will be 12 months from the date on which it was issued, unless a shorter period is specified or the permit is revoked (subclause (4)).

 

Subclause (5) provides that the Minister may seek further information from the applicant in relation to their application for a permit. This request must be made within 40 business days of receiving the application and the Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request (subclause (6)).

 

Before the Minister can issue a permit under this clause, he or she must publish on the Internet a notice that sets out the proposal to issue the permit and inviting comments. This notice must include sufficient information to enable the merits of the proposal to be adequately considered. A period of at least five business days must be provided for comment on the proposal ¾ from the date on which the notice was published on the Internet. The Minister must consider any comments received before deciding whether or not to issue the permit.

Clause 303GC - Permit authorising the Secretary to export or import specimens

This clause provides that the Secretary of the Department of the Environment and Heritage may apply to the Minister for a permit. Subclause (3) establishes that a permit issued under this clause allows the Secretary to take the action or actions specified in the permit without breaching clauses 303CC, 303CD, 303DD or 303EK.

 

Subclause (4) provides that the Minister must not issue a permit to export a specimen unless satisfied that:

-         the recipient of the specimen will be a relevant CITES authority that will use the specimen for the purpose of identification of the specimen and/or for the purpose of education or training; or

-         the specimen was seized under this Act and will be used to facilitate investigations relating to wildlife trade in or outside Australia.

 

Subclause (5) provides that the Minister must not issue a permit to import a specimen unless satisfied that:

-         the Secretary will use the specimen for the purpose of identification of the specimen; or

-         the sender of the specimen is a relevant CITES authority and the specimen will be used for the purpose of identification of the specimen and/or for the purpose of education or training; or

-         the specimen was exported in contravention of this Part or the Wildlife Protection Act and will be used to facilitate investigations relating to wildlife trade in or outside Australia.

 

Subclause (6) provides that the duration of a permit issued under this clause will be 12 months from the date on which it was issued, unless a shorter period is specified or the permit is revoked.

Clause 303GD - Testing permit - section clause 303EE assessments

This clause provides for a person to apply to the Minister for a permit to be issued to bring a specimen into the Australian jurisdiction for the purposes of conducting tests. The application is to be made in the form, and accompanied by fees, to be specified in regulations. Such fees will relate to the administrative costs of processing an application for a permit under this clause.

 

Subclause (3) provides that the Minister may seek further information from the applicant in relation to their application for a permit. This request must be made within 40 business days of receiving the application and the Minister may specify the time allowed to provide that further information.

 

The Minister can refuse to consider an application until any further information requested is received in accordance with the request (subclause (4)).

 

The Minister may issue a permit to a person who applies under subclause (1). Subclause (6) establishes that a permit issued under this clause allows the holder to take the action or actions specified in the permit without breaching clause 303EK.

 

The Minister must not issue a permit under this clause for the import of a CITES specimen (subclause (7)(c)).

 

Subclause (7) provides that the Minister must not issue a permit authorising the import of a specimen under this clause unless satisfied that:

-         the person has applied to the Minister for the list of specimens suitable for live import (referred to in clause 303EB) to be amended by adding an item; and

-         an assessment is to be made under clause 303EE and the terms of reference for a report on that assessment have been finalised; and

-         the action proposed involves conducting tests on the specimen in order to obtain information that is required for the assessment; and

-         it is not practicable for the person to obtain the information necessary for the assessment without conducting the tests in Australia; and

-         the tests will be conducted in a controlled environment.

 

The permit will be subject to conditions about holding the specimen in quarantine. Subclause (9) provides that the duration of a permit issued under this clause will be six months from the date on which it was issued, unless a shorter period is specified or the permit is revoked. The six-month expiry date on the permit refers to the importing of the specimen and not the length of time that the tests may be conducted. If the permit has expired and there is a need to import more specimens to continue the tests, then the applicant may apply for a new permit under this provision.

Clause 303GE - Conditions of permits

This clause allows for conditions to be imposed on permits. The Minister may vary or revoke a condition of a permit or may impose new conditions on permits in accordance with regulations. Any of these actions may be on the Minister’s own initiative or on the application of the permit holder.

 

Permit conditions may require the holder of the permit to do, or not do, an act or thing before or after the particular action specified in the permit. Where the holder of the permit gives a person an authority under clause 303GG, the conditions of the permit also apply to the person with the authority.

 

This clause is not intended to affect the meaning of a provision of this Act (other than a provision in Part 13A) that relates to conditions of permits.

Clause 303GF - Contravening conditions of a permit

This clause allows a fine of up to 300 penalty units to be imposed on a permit holder who breaches a specified permit condition by doing or failing to do an act.

 

Subclause (3) provides that a higher penalty of up to 600 penalty units can be imposed if the permit holder or the person to whom the permit holder has given an authority under clause 303GG contravenes a condition that relates to:

-         the sale or disposal of a live animal or plant, or the progeny of a live animal or plant; or

-         the release from captivity of a live animal or its progeny.

 

Release of an animal from captivity includes allowing the animal to escape or failing to take reasonable measures to prevent the animal from escaping.

Clause 303GG - Authorities under permits

This clause empowers a permit holder to authorise, in writing, another person to carry out on behalf of the permit holder any act authorised by the permit. This is possible only if the permit conditions allow an authority to be given, and if done in accordance with those conditions.

 

The permit holder who gives an authority is not prevented from operating under that permit. The permit holder must notify the Minister in writing within 14 days of giving an authority.

Clause 303GH - Transfer of permits

This clause enables a permit holder to apply to the Minister for the permit to be transferred to another person. It also allows the Minister to transfer the permit. The application and transfer must be made in accordance with the regulations.

Clause 303GI - Suspension or cancellation of permits

This clause empowers the Minister to cancel a permit or suspend a permit for a specified period of time. The suspension or cancellation must be made in accordance with the regulations.

Clause 303GJ- Review of decisions

This clause provides that applications may be made to the Tribunal seeking a review of decisions about permits under this Part, certificates issued under clause 303CC(5), determinations made under clause 303EU and declarations made under clauses 303FN, 303FO or 303FP.

 

Where a review of a decision relates to subclauses 303CG(3)(a) or (c), 303DG(3)(a) or (c) or 303EN(3)(e), the President of the Tribunal must ensure that the Tribunal is constituted by, or includes, a member that has special knowledge or skill in relation to environmental matters.

Clause 303GK - Permit to be produced

This clause provides that the holder of an export or import permit must produce the permit to an authorised officer doing duty in relation to the export or import of the specimen.

 

The holder of an export permit may also produce a written notice from the Secretary authorising the export without production of the permit. The Secretary must not give such a notice unless he or she is satisfied that production of the permit is impracticable, endorses a copy of the permit and makes that copy available to an appropriate authorised officer.

 

The provisions of this clause also apply to a person holding an authority from the permit holder, issued in accordance with clause 303GG.

Clause 303GL - Pre-CITES certificate to be produced

This clause provides that the holder of a pre-CITES certificate must produce the permit to an authorised officer doing duty in relation to the export or import of the specimen.

 

The holder of a pre-CITES certificate who wishes to rely on that certificate for the purpose of exporting a specimen may also produce a written notice from the Secretary authorising the export without production of the certificate. The Secretary must not give such a notice unless he or she is satisfied that production of the certificate is impracticable, endorses a copy of the certificate and makes that copy available to an appropriate authorised officer.

Clause 303GM - Fees

This clause allows for a fee to be charged if a permit is granted or transferred, or if permit conditions are varied, revoked or further conditions imposed. It is intended that any fees prescribed will cover the administrative costs of carrying out these functions and are separate to any application fees prescribed under the regulations in relation to clauses 303CE, 303DE(2) and 303EL.

Clause 303GN - Possession of illegally imported specimens

This clause makes it an offence, punishable by up to five years imprisonment or a fine of 1000 penalty units, or both, for a person to have in their possession, in the Australian jurisdiction, a CITES specimen or a regulated live specimen that is not included in the list of specimens suitable for live import (referred to in clause 303EB). The offence applies if the person is reckless as to the fact the specimen is a CITES specimen or a regulated live specimen not included in the list of specimens suitable for live import. The offence is not committed if the specimen belongs to a native species.

 

Subclause (3) provides that this offence does not apply if the specimen was lawfully imported, or the specimen was not imported but all of the specimens of which it is the progeny were lawfully imported. Under subclause (4), the offence does also does not apply if the specimen was neither imported, nor the progeny of a specimen that was imported. The defendant bears an evidential burden of proof in relation to these matters. Under subclause (5), the offence under subclause (2) does not apply if the defendant has a reasonable excuse. The defendant bears an evidential burden of proof in relation to this matter.

 

Subclause (6) makes it a separate offence for a person to have in their possession, in the Australian jurisdiction, a live specimen that is included in Part 2 of the list of specimens suitable for live import (referred to in clause 303EB); that is not a native species and was unlawfully imported or is the progeny of specimens that were unlawfully imported. Specimens that are included in Part 2 of the list referred to in clause 303EB are regulated live specimens that may be imported under a permit (allowable regulated specimens).

 

The penalty for this offence is also up to five years imprisonment or a fine of 1000 penalty units, or both.

 

Under subclause (7), the offence under subclause (6) does not apply if the person has a reasonable excuse. The defendant bears an evidential burden of proof in relation to this matter.

Clause 303GO - Regulations relating to welfare

This clause provides that regulations made for the purposes of clauses 303CG(3)(c), 303DG(4)(b), 303EN(3)(e), 303FN(3)(c) or 303FO(3)(f) may provide for a range of matters relating to the welfare of live animals or live plants. The matters specified in this clause are not intended to limit the regulations relating to welfare that can be made.

 

The purpose of this clause is to ensure that welfare considerations are properly taken into account in relevant decisions under the Act. The intention is to improve consideration of welfare matters, and ensure humane treatment of wildlife.

 

A number of codes of conduct for animal welfare are currently in place for commercial operations (for example for kangaroos and crocodiles). It is intended that the regulations will provide for the application of relevant codes of conduct (where best practice standards are incorporated) for the purposes of:

-         assessing applications for permits under subclauses 303CG(3)(c), 303DG(4)(b) and 303EN(3)(e); and

-         making a declaration under subclauses 303FN(3)(c) or 303FO(3)(f).

Clause 303GP - Cruelty - export or import of animals

This clause makes it an offence, punishable by up to two years imprisonment, for a person to export or import a live animal in a manner that subjects the animal to cruel treatment. The offence applies when the animal is:

-         a CITES specimen and the person contravenes clauses 303CC or 303CD; or

-         a regulated native specimen and the person contravenes clause 303DD; or

-         a regulated live specimen and the person contravenes clause 303EK.

Clause 303GQ - Imports of specimens contrary to the laws of a foreign country

This clause makes it an offence, punishable by up to five years imprisonment, to intentionally import a specimen that has been illegally exported from a foreign country. A prosecution under this clause can only proceed if the relevant CITES authority of the country from which the specimen has been exported requests assistance or an investigation of the offence.

Clause 303GR - Evidence

This clause sets out the types of records that can be used as evidence in any proceedings for an offence against this Part. The person charged may require the person that kept the record to be called as witness for the prosecution in the proceedings.

Clause 303GS - Evidence of examiner

The clause provides that the Minister may, by writing, appoint appropriately qualified persons to be examiners for the purposes of this Part. A certificate signed by an examiner is admissible in any proceeding for an offence against this Part.

 

Subclause (2) sets out the types of things that can be set out in a certificate in relation to a substance, matter, specimen or thing.

 

Before a certificate can be admitted in evidence, a copy must be given, along with a notice of the intention to produce the certificate as evidence, to the person charged with the offence or a solicitor appearing for the person. The copy and notice must be given at least 14 days before the certificate is to be admitted.

 

The person charged may require the examiner to be called as witness for the prosecution in the proceedings. This only applies if the prosecutor has been given at least four days notice of the person’s intention to call the examiner or if the person has a court order allowing them to require the examiner to be called.

Clause 303GT - Protection of witness

This clause provides that a witness for the prosecution is not to be compelled to disclose the fact that he or she received any information, the nature of the information received or the name of the person who gave them the information.

 

An authorised officer who is a witness is not to be compelled to produce any report that was made or received in confidence or that contains information received in confidence.

 

This clause is not intended to affect the compellability of witnesses in proceedings for an offence against provisions that are not included in Part 13A of this Act.

Clause 303GU - Forms and declarations - persons arriving in Australia or an external Territory

This clause provides that the regulations may provide for persons arriving in Australia to complete forms or make declarations in relation to specimens.

Clause 303GV - Saving of other laws

This clause provides that the provisions of this Part apply in addition to the Customs Act 1901 , the Quarantine Act 1908 and any other law of the Commonwealth or of an external Territory. The holder of an export or import permit issued under this Part is not exempt from compliance with these laws. Regulations made for the purposes of this Part do not authorise or permit actions that contravene the Quarantine Act 1908 or any other law of an external Territory relating to quarantine.

Clause 303GW - Part not to apply to certain specimens

This clause provides that in certain circumstances, a specimen that is brought into or sent out of Australia, or an external Territory is not taken to have been imported or exported for the purposes of this Part.

Clause 303GX - Part not to apply to certain specimens used by traditional inhabitants

This clause defines certain terms that apply only to this clause. It provides that certain actions related to the export or import of a specimen are not taken to be an export or import for the purposes of this Part. These circumstances include where the specimen is owned or under the control of a traditional inhabitant and has been, is being or will be used in connection with the performance of traditional activities. Such activities must occur in the Protected Zone (established under Article 10 of the 1978 Torres Strait Treaty) or in an area in the vicinity of the Protected Zone that the Minister, by notice published in the Gazette , declares to be the Protected Zone for the purposes of this clause.

Clause 303GY - When a specimen is lawfully imported

This clause defines, for the purposes of this Part, the circumstances in which a specimen is taken to be lawfully imported.

Item 12 - Subsection 391(3) (after table item 10)

This item lists those clauses in Part 13A under which the Minister must take account of the precautionary principle when making his or her decision.

Item 13 - At the end of section 397

This item provides that each officer of Customs, each member of the police force of an external territory and certain officers of the Australian Quarantine Inspection Service are inspectors ex officio for matters relating to Part 13A. Inspectors are authorised officers under the EPBC Act , and can exercise all enforcement powers in Part 17 of that Act.

Item 14 - Subsection 399(1)

This item provides that Customs officers do not require the special issue of an identity card for the purposes of the EPBC Act.

Item 15 - Subsection 404(1)

This item provides that a Customs officer in uniform is not required to produce written evidence that he or she is a member of the Australian Customs Service, on boarding a vessel etc under section 403.

Item 16 - After paragraph 404(1)(a)

This item provides that if not in uniform, a Customs officer must produce written evidence that he or she is a member of the Australian Customs Service.

Item 17 - Subsection 404(3)

This item provides that a Customs officer in uniform is not required to produce written evidence that he or she is a member of the Australian Customs Service on making a requirement of a person.

Item 18 - After paragraph 404(3)(a)

This item provides that if not in uniform, Customs officers must produce written evidence that they are a member of the Australian Customs Service on making a requirement of a person under section 404.

Item 19 - Subsection 408(4)

This item provides that Customs officers may seize things taken to be specimens for the purposes of Part 13A.

Item 20 - After paragraph 408(7)(c)

This item provides that Customs officers are required to produce identification if requested by the owner of premises they are entering under section 408.

Item 21 - Subsection 409(5)

This item provides that Customs officers may seize things taken to be specimens for the purposes of Part 13A.

Item 22 - Subsection 430(2)

This item provides that a Customs officer in uniform is not required to produce written evidence that he or she is a member of the Australian Customs Service on arresting a person under section 430.

Item 23 - After paragraph 430(2)(a)

This item provides that if not in uniform, a Customs officer must produce written evidence that he or she is a member of the Australian Customs Service, when arresting a person under section 430.

Item - 24 Subsection 442(5)

This item provides that a Customs officer in uniform is not required to produce written evidence that he or she is a member of the Australian Customs Service when asking a person’s name and address.

Item 25 - After paragraph 442(5)(a)

This item provides that if not in uniform, Customs officers must produce written evidence that they are a member of the Australian Customs Service when making a request of a person under section 445.

Item 26 - After Division 8 of Part 17

This item inserts a new Division enabling powers specific to Part 13A.

Clause 443A - Authorised officer may ask questions about the nature or origin of specimens

This clause empowers an authorised officer to ask a person suspected to have been involved in committing an offence against clauses 303CC, 303CD, 303DD, 303EK and 303GN of Part 13A questions about the nature and origin of specimens. Failure to answer, or knowingly giving a false or misleading answer, to such a question is punishable by a penalty of up to ten penalty points. The person is not required to answer a question if the answer might incriminate them or expose them to a penalty. This clause does not apply if the authorised officer fails to produce prescribed identification.

Item 27 - After paragraph 444(4)(a)

This item provides that a Customs officer must produce written evidence that he or she is a member of the Australian Customs Service when asking a person’s name and address.

Item 28 - Before Subdivision A of Division 10 of Part 17

This item inserts a new subdivision relating to the seizure of specimens involved in a contravention of Part 13A.

 

Subdivision AA - Seizure of specimens involved in a contravention of Part 13A

Clause 444A - Seizure of specimens involved in a contravention of Part 13A

This clause provides that an authorised officer may seize a specimen if there is reasonable suspicion that the specimen has been used or otherwise involved in the commission of an offence against Part 13A. The power to seize specimens is distinct from the power already provided under section 445 for an authorised officer to seize any goods involved in a contravention of the Act.

Clause 444B - Notice about seizure

This clause provides that if a specimen is seized under clause 444A, a written notice must be given to the person from whom the specimen was seized giving reasons for the seizure and setting out the process for applying for the return of the specimen.

Clause 444C - Applications for return of specimen

This clause provides that the owner of a specimen seized under clause 444A may apply for its return within 30 days of the seizure. If the applicant satisfies the Secretary that the specimen was not connected with the commission of an offence against Part 13A, the application must be granted.

Clause 444D - Court action for return of specimen

This clause provides that the owner of a seized specimen may within 30 days of the seizure bring an action against the Commonwealth to obtain the return of the specimen. If the court finds that the specimen was used in the commission of an offence under Part 13A, the court may order the specimen to be forfeited to the Commonwealth. If the action is discontinued (except by the return of the specimen to the owner), the specimen is to be disposed of or forfeited to the Commonwealth.

Clause 444E - consignment of specimen with consent of owner

This clause provides that a seized specimen may be returned to the country of origin at the owner’s expense:

-         if the owner gives consent; and

-         if the CITES Management Authority of that country agrees; and

-         if there is no reasonable likelihood that an import permit would have been granted (if applied for); and

-         if the export had not been in contravention of the country’s law.

Clause 444F - Release of specimen

This clause empowers the Secretary to return a seized specimen to the owner, with or without conditions.

Clause 444G - Retention of specimen

This clause provides that a specimen seized under clause 444A may be retained up to 30 days after either:

-         the seizure;

-         the receipt of the notice under clause 444B;

-         the decision on an application for return of the specimen; or

-         court proceedings initiated under clause 444D.

Clause 444H - Forfeiture of specimen after end of retention period

This clause sets out the conditions under which a specimen seized under clause 444A can be forfeited to the Commonwealth.

Clause 444J - Forfeiture of specimen by consent etc.

This clause provides that the owner may transfer ownership to the Commonwealth of a specimen seized under clause 444A.

Clause 444K - Forfeiture of specimen by order of a civil court

This clause empowers a civil court to order the forfeiture of a specimen seized under clause 444A to the Commonwealth if the specimen has been used or involved in a contravention of Part 13A.

Item 29 - After subsection 450(1)

This item provides that the court-ordered forfeiture provisions under section 450 extend to offences against Part 13A.

Item 30 - Subsection 450(1)

This item is a consequential amendment to Item 16.

Item 31 - Subsection 450(2)

This item is a consequential amendment to Item 16 - the addition of the term specimen makes clear that the provision applies to offences against Part 13A.

Item 32 - At the end of section 451

This item establishes that the Secretary must not sell a specimen forfeited to the Commonwealth under this Act unless the buyer will use the specimen for scientific or educational purposes.

Item 33 - At the end of section 517

This item ensures that a determination made by the Minister under section 517 of a distinct population as a species, does not apply for the purposes of Part 13A or the definitions of CITES I, II and III species in section 528. This provision is not to affect the meaning of listed threatened species , when used in Part 13A.

Item 34 - At the end of section 520

This item provides that regulations may be made in relation to the movement of wildlife specimens between Australia and external Territories. Regulations may also be made in relation to the possession in an external Territory of a specimen that has been imported into that Territory in contravention of any regulations made under subclause (7), or the progeny of such specimens.

 

This provision amends the approach under the Wildlife Protection Act of prescribing certain external Territories, and exempting prescribed Territories from the requirement for a permit under that Act for the export or import of specimens between that Territory and the Australian mainland or between that Territory and another prescribed Territory.

Item 35 At the end of section 522B

 

This clause provides that section 522B is to be disregarded for the purposes of Part 13A.

Item 36 At the end of section 523

 

This clause provides that section 523 is to be disregarded for the purposes of Part 13A.

Item 37 At the end of Division 1 of Part 23

This item inserts a new Subdivision defining certain terms relating to provisions under Part 13A.

Subdivision E - Specimens
Clauses 527A, 527B, 527C and 527D

These clauses define a number of terms used in the Bill for the purposes of the Act.

 

Clause 527A inserts a definition of a specimen for the purposes of the Act. This definition is necessary for the effective operation of Part 13A, particularly in relation to the listing and regulation of CITES species and CITES specimens. For example, while the Appendices to CITES are lists of species, CITES may decide to regulate only certain specimens of a species (particular parts of an animal such as skin and feathers or a plant such as its roots, articles produced from or derived from an animal or plant and reproductive material). This definition is not intended to affect the interpretation of other definitions in the Act.

Items 38 - 69

These items insert definitions of a number of terms used in the Bill.

 

Item 64 amends the definition of species in section 528 to include a distinct population of biological entities that interbreed to produce fertile offspring and possess common characteristics derived from a common gene pool ¾ without requiring that the Minister make a specific declaration for this purpose under section 517. This amendment is only intended to affect the definition for the purposes of Part 13A ¾ including for the purpose of the definitions of CITES I, II and III species.

 

The definition of species in section 528 is not currently capable of covering some of the things listed as species in the Appendices to CITES.

 

PART 2 - TRANSITIONAL PROVISIONS RELATING TO WILDLIFE

Item 70 - Transitional - applications pending immediately before this item commenced

This item provides for transitional arrangements in relation to applications for permits and authorities under the Wildlife Protection Act. If an application has been made but not decided at commencement of this item, the application will be considered as if made under the equivalent new provisions under Part 13A. The applicant can elect to treat fees already paid as discharging application fees under the new provisions. Otherwise, the Commonwealth must refund the amount paid. New fees may be less than or equal to, but not more than, the fees that applied prior to commencement of this item. Authorities issued under section 41 and 43 of the Wildlife Protection Act are excluded from this provision.

Item 71 - Transitional - permits or authorities in force immediately before the item commenced

This item provides that a valid permit or authority issued under the Wildlife Protection Act and in force immediately prior to the commencement of this item will continue to be valid, as if issued under the equivalent new provision. Authorities issued under section 41 and 43 of the Wildlife Protection Act are excluded from this provision.

Item 72 - Transitional - clause 303EU of the EPBC Act

This item provides that a determination made under the Wildlife Protection Act in relation to the marking for identification of live animals continues to have effect as if made under the equivalent new provision.

Item 73 - Transitional - clause 303FN of the EPBC Act

This item provides that a declaration of a controlled specimen operation within Australia made under the Wildlife Protection Act continues to be in effect until it would have expired if that Act had not been repealed, and as if declared under the equivalent new provision.

Item 74 - Transitional - clause 303FO of the EPBC Act

This item provides that a declaration approving a management program made under the Wildlife Protection Act continues to be in effect until it would have expired if that Act had not been repealed, and as if declared under the equivalent new provision.

Item 75 - Transitional - clause 303FR of the EPBC Act

This item provides that public comments made in regard to a proposed declaration of a controlled specimen operation under the Wildlife Protection Act should be considered in relation to the decision to make that declaration under the equivalent new provision.

Item 76 - Transitional - clause 303FR of the EPBC Act

This item provides that public comments made in regard to a proposed declaration of approval for a management program under the Wildlife Protection Act should be considered in relation to the decision to make that declaration under the equivalent new provision.

Item 77 - Transitional - clause 303FU of the EPBC Act

This item provides that a declaration of a controlled specimen operation outside Australia made under the Wildlife Protection Act continues to be in effect until it would have expired if that Act had not been repealed, and as if declared under the equivalent new provision.

Item 78 - Transitional - clause 303GS of the EPBC Act

This item provides that appointments of examiners under the Wildlife Protection Actcontinue to be in effect after the commencement of this item.

Item 79 - Transitional - clause 303GX of EPBC Act

This item provides that declarations made in relation to specimens used by traditional inhabitants under the Wildlife Protection Act continue to be in effect after commencement of this item.

Item 80 - Transitional - section 396 of the EPBC Act

This item provides that inspectors appointed under the Wildlife Protection Act continue to be appointed under the Environment Protection and Biodiversity Conservation Act 1999.

Item 81 - Transitional - Part 17 the EPBC Act

This item provides that enforcement provisions of the EPBC Act apply to offences committed under the Wildlife Protection Act ; and that anything done under enforcement provisions of the Wildlife Protection Act is taken to be done under corresponding sections in the EPBC Act.

Item 82 - Transitional - regulations

This item provides that regulations may be made for matters relating to transitional arrangements.

 

PART 3 - OTHER AMENDMENTS

Item 83 - At the end of Division 1 of Part 13.

 

Section 25A - Actions that are taken to be covered by this Division.

 

This section enables the Environment Minister, where appropriate, to recommend to the Governor-General that regulations be made identifying actions (or classes of actions) that are taken to have a significant impact on matters of national environmental significance. The effect of this provision is to extend the scope of the existing provisions in Division 1 of Part 3 of the Act to cover a particular action or class of actions so that actions in a class specified in a regulation will be a controlled action for the purposes of the Act. Providing the Environment Minister with the ability to have such regulations made will provide greater certainty for stakeholders in relation to the actions that will be covered by the provisions in Division 1 of Part 3.

 

Subdivision 1 - Evidentiary certificates

 

Sections 25B to 25F (inclusive)

 

These sections will help prevent circumstances arising in which actions are taken, or likely to be taken, before an approval decision is made under Part 9 of the Act. The provisions provide the Environment Minister with the ability in relevant circumstances to issue an evidentiary certificate which states that if a person proceeds for example with a controlled action that requires environmental assessment and approval under the Act, the person will be contravening a specified civil penalty provision of Division 1 of Part 3 of the Act which deals with the protection of matters of national environmental significance. As is made clear in section 25D the certificate only provides prima facie evidence in the context of Court proceedings involving the seeking of an injunction under section 475 of the Act or obtaining an order for a civil penalty under section 481 of the Act.

 

Item 84 - At the end of section 70

This item provides that where a person fails to refer an action, as requested under section 70, the Environment Minister can determine that the Act has effect as if a referral had been made under sub-sections 68(1) or 69(1). Following a determination the Environment Minister will then proceed to make a decision on whether the action is a controlled action. The making of this decision will be undertaken in accordance with the existing process relating to whether approval is required under the Act.

 

 

Item 85 - Section 524B

Item 86 - Section 528 (definition of significant)

These items repeal section 524B of the Act which deals with the making of regulations to be taken into account in determining whether an action has, will have or is likely to have a significant impact; together with the related definition of significant in section 528. The provisions are replaced by item 83.

SCHEDULE 2 - REPEAL OF THE WILDLIFE PROTECTION ACT

Wildlife Protection Act

Item 1 - The whole of the Act

This item repeals the Wildlife Protection Act.

Item 2 - Transitional - section 75 of the Wildlife Protection Act

This item provides that section 75 of the Wildlife Protection Act continues to apply, despite the repeal of the Act, in relation to a proceeding for an offence against this Act committed before this item commenced.

Item 3 - Transitional - section 75A of the Wildlife Protection Act

This item provides that section 75A (relating to the protection of witnesses) of the Wildlife Protection Act continues to apply, despite the repeal of the Act, in relation to a proceeding for an offence against this Act committed before this item commenced.

Item 4 - Transitional - regulations

This item provides that regulations may be made for matters of a transitional nature relating to the repeal of the Wildlife Protection Act.

SCHEDULE 3 - AMENDMENT OF OTHER ACTS

Biological Control Act 1984

Item 1 - Paragraph 5(2)(b)
This item amends this paragraph by replacing the reference to the ‘ Wildlife Protection Act with a reference to ‘Part 13A of the EPBC Act.’


TRANSLATION OF WILDLIFE PROTECTION ACT PROVISIONS

 

Wildlife Protection (Regulation of Exports and Imports) Act 1982

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

Part I - Preliminary

 

1.         s 1: Short title

Not required

2.         s 2: Commencement

Not required

3.         s 3: Object of Act

clause 303BA

4.         s 4: Interpretation

clause 303BC Definitions (which apply only to Part 13A)

See also Items 35-67

Meaning of Convention at clause 303CM

5.         s5 : Saving of other laws

clause 303GV - Saving of other laws

6.         s6 : Application of Act

Not required

7.         s7 : Act to bind Crown

Not required

8.         s8 : Act not to apply to certain specimens

clause 303GW - Part not to apply to certain specimens

9.         s 8A: Act not to apply to certain specimens used by traditional inhabitants

clause 303GX - Part not to apply to certain specimens used by traditional inhabitants

10.      s9 : Variation of Schedules

Schedule 1 - clause 303CA (CITES I)

Schedule 2 - clause 303CA (CITES II)

Schedule 2A - clause 303CA (CITES III)

Schedule 3 - covered by Part 13 Division 3

Schedule 4 - clause 303DB

Schedule 5 - clause 303EB

Schedule 6 - clause 303EB

Schedule 7 - clause 303FG(4-7)

Schedule 8 - Convention - no longer required in Schedules

Schedule 9 - no longer required with abolition of NEBRS

11.      s 9A: Register of persons concerned about amendments of Schedule 6 or declarations of management programs or controlled specimens

Public comment required for:

Approved Wildlife Trade Management Plans, Accredited Wildlife Trade Management Plans and Wildlife Trade Operations and amendment of the list of species suitable for live import.

12.      s 9B: Views of concerned persons to be considered before making declarations

13.      s 10: Approved management programs

clause 303FO



 

Wildlife Protection (Regulation of Exports and Imports) Act 1982

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

14.      s 10A: Controlled specimens

clause 303FN

15.      s 11: Approved institutions

Institutions will not be assessed - rather the purpose of the import/export. For each permit the Minister must be satisfied in relation to welfare (clause 303GO) and other restrictions in listing of live imports species on Part 2 of the list of species suitable for live import (clause 303EB) - see also clause 303FC, 303FD, 303FE, 303FF

16.      s 12: Approved zoological organisations

17.      s 13: Inter zoological gardens transfer

18.      s 14: Breeding in captivity

clause 303FK and 527B

19.      s 15: Artificial propagation

clause 303FL and 527C

20.      s 16: Export of household pets-native Australian animals

clause 303FG

21.      s 16A: Export of household pets-other animals

clause 303FG

22.      s 17: Designated Authority

clause 303CL

23.      s 18: Constitution of Designated Authority

Not required

24.      s 19: Remuneration and allowances of Designated Authority

Not required

25.      s 20: Acting Designated Authority

Not required

Part II - Division I - Prohibition

 

26.      s 21: Certain exports prohibited

27.      s 22: Certain imports prohibited

CITES clause 303CC - Natives - clause 303DD

CITES clause 303CD - Live - clause 303EK

Division 2 - Permits

 

28.      s 23: Application for permit

CITES - clause 303CE, 303CDB

Natives - clause 303DE, 303DE

Live - clause 303EL, 303EM

29.      s 24: Grant of permit

CITES - clause 303CG

Natives - clause 303DG

Live - clause 303EN

Division 3 - Export permits

 

30.      s 25: Permits to export not to be granted if detrimental to survival of kind of animals or plants

clause 303CG(3)(a)

clause 303DG(4)(a)

31.      s 26: Permits to export not to be granted in respect of specimens unlawfully obtained etc.

clause 303CG(3)(b)

clause 303DG(4)(c)

32.      s 27: Requirements for permits to export live animals and live plants

Covered by restrictions appended to Part 2 species list (clause 303EB) and welfare (clause 303GO)

33.      s 28: Requirements for permits to export-Schedule 1

clause 303CG, 303CH, 303FA, 303FJ

34.      s 29: Requirements for permits to export-Schedule 2

clause 303CG, 303CH, 303FA, 303FJ

35.      s 30: Requirements for permits to export-Schedule 3

Schedule 1 Part 1 Items 1-10



 

Wildlife Protection (Regulation of Exports and Imports) Act 1982

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

36.      s 31: Requirements for permits to export-native Australian animals and plants

clause 303DG

37.      s 32: Permits to re-export

clause 303CG(4), 303CG(5), c303DG(5) and 303DG(6)

Division 4 - Import permits

 

38.      s 33: Permits to import not to be granted if detrimental to survival of kind of animals or plants

clause 303CG(3)(a)

39.      s 34: Requirements for permits to import live animals and live plants

Covered by restrictions appended to Part 2 species list (clause 303EB) and welfare (clause 303GO)

40.      s 35: Requirements for permits to import certain live animals and live plants

clause 303CG(3)(c)

41.      s 36: Requirements for permits to import-Schedule 1

clause 303CG, 303CH, 303FA, 303FJ

42.      s 37: Requirements for permits to import-Schedule 2

clause 303CG, 303CH, 303FA, 303FJ

43.      s 38: Requirements for permits to import-Schedule 3

Schedule 1 Part 1 Items 1-10

44.      s 38A: Requirements for permits to import-Schedule 2A

clause 303CG, 303CH, 303FA, 303FJ

Division 5 - Authorities

 

45.      s 39: Application for authority

Not needed.

46.      s 40: Register of scientific organisations

Regulations via clause 303CC(3) and 303CD(4)

Regulations via clause 303DD(4)

47.      s 41: Authority to export or import scientific specimens

48.      s 42: Authority to export or import artificially propagated plants

Multi-use conditions to be attached to permits:

CITES - clause 303CC, 303CD

Natives - clause 303DE, 303DE

Live - clause 303EL, 303EM

 

49.      s 42A: Authority to export certain specimens

50.      s 42B: Authority to import certain specimens

51.      s 43: Authority to export or import for the purposes of travelling circuses etc.

clause 303FI

52.      s 43A: Authority for Designated Authority to export or import specimens

clause 303GC

53.      s 44: Authority to export or import in exceptional circumstances

clause 303GB

Division 6 - Permits and Authorities

 

54.      s 45: Permit or authority to be produced

clause 303GK

55.      s 46: Revocation etc. of permits and authorities

clause 303GE, 303GI

56.      s 47: Conditions in respect of permits and authorities

clause 303GE

57.      s 47A: Export of live native Australian animals by way of inter zoological gardens transfer-special conditions in respect of permits or authorities

Covered under regulations to clause 303FC, 303FD, 303FE and 303FF

58.      s 48: Compliance with conditions of permit or authority

clause 303GF

59.      s 49: Applications to Minister to vary operation of permits or authorities

Covered under regulations to clause 303GE

60.      s 50: Conditions relating to imported animals

clause 303GF(3)

61.      s 51: Conditions relating to imported plants

clause 303GF(3)



 

Wildlife Protection (Regulation of Exports and Imports) Act 1982

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

Division 6A - Marking of certain specimens for the purposes of identification

 

62.      s 51A: Object

clause 303ER

63.      s 51B: Specimens to which Division applies

clause 303ES

64.      s 51C: Extended meaning of marking

clause 303ET

65.      s 51D: Designated Authority may make determinations about marking of specimens

clause 303EU

66.      s 51E: Offences

clause 303EV

67.      s 51F: Concurrent operation of State and Territory laws

Not required

Division 7 - Miscellaneous

 

68.      s 52: Matters published in Gazette

clause 303CK, 303DJ and303EQ

69.      s 53: Possession of illegally imported specimens

clause 303GN

70.      s 53A: Cruelty - import or export of animals

clause 303GP

71.      s 53B: Imports of specimens contrary to the laws of a foreign country

clause 303GQ

Part IIA - NEBRS

 

72.      57. NEBRS

Repealed

Part III - Enforcement

The majority of Wildlife Protection Act enforcement provisions are already provided for in the EPBC Act. The following provisions are specific to offences committed against Part 13A of the EPBC.

73.      s 69: Inspector may ask questions about the s nature or origin of specimens: 10 penalty units

clause 443A

74.      s 69B: Seizure of specimens involved in a contravention of this Act or the regulations

clause 444A

75.      s 69C: Notice about seizure

clause 444B

76.      s 69D: Applications for return of specimen

clause 444C

77.      s 69E: Court action for return of specimen

clause 444D

78.      s 69F: Consignment of specimen with consent of owner

clause 444E

79.      s 69G: Release of specimen

clause 444F

80.      s 69H: Retention of specimen

clause 444G

81.      s 69J: Forfeiture of specimen after end of retention period

clause 444H

82.      s 69K: Forfeiture of specimen by consent etc.

clause 444J

83.      s 69L: Forfeiture of specimen by order of a civil court

clause 444K

84.      s 69S: Court-ordered forfeiture

EPBC section 450 and new subclause 450(1A) under Item 29

Part IV - Miscellaneous

 

85.      s 72: False statements: intentional, imprisonment up to 2 yrs;

Provided for under the Criminal Code Act 1995

86.      s 74: Evidence

clause 303GR

87.      s 75: Evidence of examiner

clause 303GS

88.      s 75A: Protection of witness

clause 303GT

89.      s 76: Delegation by Minister

EPBC section 515



 

Wildlife Protection (Regulation of Exports and Imports) Act 1982

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

90.      s 76A: Delegation by Designated Authority

EPBC section 515

91.      s 77: Arrangements by Minister and Designated Authority

Not required

92.      s 78: Co-operation with States and Territories

clause 303DC(2), 303EC, 303FQ

93.      s 79: Fees

clause 303GM

94.      s 80: Review on decisions

clause 303GJ

95.      s 81: Regulations

EPBC section 520

96.      s 82: Customs (Endangered Species) Regs

Not required