Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a lawyer (whether barrister or solicitor) working in the area wildlife offences and/or the area of wildlife prosecutions before acting or relying on any of its content.
The export and import of animals is regulated under both Commonwealth and State legislation.
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
This Act creates a number of offences relating to the import and export of certain species:
Sections 303CC and 303CD state that a person will be guilty of an offence if they export or import a specimen (eg. animal) and that specimen is protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Section 303DD creates the offence of exporting native specimens.
Section 303EK states that a person will be guilty of an offence if they import a regulated live specimen (animal or plant).
The maximum penalty for the above offences is 10 years imprisonment and/or a fine of 1000 penalty units. The Department of the Environment will only refer the most serious cases to the Commonwealth Director of Public Prosecutions (CDPP) for prosecution. It is important to note however that both provisions contain a number of exceptions, the principal one being possession of a relevant import licence.
The NSW Office of Environment & Heritage regulates the import of animals into NSW under the National Parks and Wildlife Act 1974 (NSW) (NPW).
A person must apply to the Department for an interstate import licence if they are seeking to bring certain animal species into NSW (specifically, protected fauna).
Section 106 makes it an offence to export or import animals without such a licence. It reads as follows:
(1) A person shall not import into or export from New South Wales any protected fauna.
(2) Subsection (1) does not apply to any protected fauna of a species prescribed for the purposes of this subsection or to any emu product.
(3) A person shall not be convicted of an offence arising under subsection (1) if the person proves that the act constituting the offence was done under and in accordance with or by virtue of the authority conferred by an import licence or an export licence under section 126.
Proceedings for an offence under the NPW are dealt with in one of two ways:
Summarily in the Local Court or the Land and Environment Court: s 189(1). They can be commenced no later than 2 years after the date on which the offence was committed or evidence of the offence first came to the attention of the Office: s 190(1). Maximum penalty is 100 penalty units or $11,000 for individuals: s 175.
2. Alternatively, the Office may try to serve you with a penalty notice pursuant to section 192 of the NPW.
Where it appears that a person has committed a prescribed offence against the NPW (for example, section 106) that person may be served with a notice stating that, if they do not desire for the matter to be determined by a Court, he or she may pay a prescribed fine: section 192(2). This notice must be served either personally, or through the post/email/fax: section 174.
If the fine is paid, the person will not be liable for any further proceedings for the alleged offence: s 192(4). Importantly, payment of the penalty does not constitute an admission of guilt or liability: s 192(5).
The amount prescribed for an offence against section 106(1) is 300 penalty units or $33,000: Sch 2.
By Sebastian De Brennan, Barrister, email@example.com